Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                  Mar 06 2014, 9:11 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

MELLONDIE BENSEN                                GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                KYLE HUNTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MELLONDIE BENSEN,                               )
                                                )
       Appellant,                               )
                                                )
              vs.                               )      No. 93A02-1311-EX-920
                                                )
REVIEW BOARD OF THE INDIANA                     )
DEPARTMENT OF WORKFORCE                         )
DEVELOPMENT,                                    )
                                                )
       Appellee.                                )


                   APPEAL FROM THE REVIEW BOARD OF THE INDIANA
                     DEPARTMENT OF WORKFORCE DEVELOPMENT
                         The Honorable Steven F. Bier, Chairperson
                                  Cause No. 13-R-3354



                                       March 6, 2014


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        Mellondie Benson (“Employee”), pro se, appeals a decision by the Review Board

of the Indiana Department of Workforce Development (the “Board”) denying her claim

for certain unemployment benefits. Employee raises two issues which we consolidate

and restate as whether the Board erred in concluding that she was not entitled to

additional employment benefit payments. We affirm.

                              FACTS AND PROCEDURAL HISTORY

        Employee filed a claim with the Indiana Department of Workforce Development

(“DWD”) for regular unemployment insurance (“UI”) benefits on or about October 9,

2011, which claim had a benefit period end date of October 6, 2012. On or about

October 28, 2012, a claim was initiated for Employee to receive federal extended

emergency unemployment compensation (“EUC”), which claim had a benefit period end

date of October 12, 2013.1               On April 7, 2013, Employee filed another claim for

unemployment benefits, which claim had a benefit period end date of April 5, 2014.2

        On May 28, 2013, Employee filed a letter appeal from the deputy’s determination

with respect to the April 7, 2013 claim.3 In her letter, Employee stated that she was

appealing “to receive the funds that were not issued from [her] initial (regular) [October

9, 2011] claim, which left approximately $586.00”4 and that “[w]hen [she] went into the

WorkOne office to check get [sic] information about why [her] benefits were stopped


        1
           Employee testified that, when her benefits from her October 2011 claim expired, she went to the
office to file an appeal and that the representative “put [her] on the EUC.” Transcript at 16.
        2
            This claim was identified as a claim for UI in DWD’s system.
        3
            The parties do not point to a copy of the deputy’s determination in the record.
        4
          Employee testified at the hearing and argues on appeal that the remaining amount she is entitled
to is $574.
                                                       2
when there was money left, [she] was told the claim had expired and to apply for EUC

benefits [and] that the benefits that were not issued could not be issued.” Appellant’s

Appendix at 6; Exhibits at 2. Employee also stated that “[d]uring mid May 2013 when

[she] logged into file [her] weekly voucher for EUC, there was nothing there for [her] to

fill out” and that the WorkOne “representative told [her] that [her] benefits stopped

because the time limit for tier III EUC had been reached.” Id. Employee stated that she

“would like to be issued the benefits that were left from [her] initial (regular) claim.” Id.

       On August 21, 2013, the DWD sent a Notice of Hearing to Employee stating that a

telephonic hearing was scheduled for September 3, 2013, and that, if she had documents

she wished for the judge to consider, she must deliver them by mail, fax, or in person to

the appeals office and the other party and that the documents must be received at least

twenty-four hours before the scheduled hearing.          On August 28, 2013, DWD, UI

Appeals, received an acknowledgement sheet from Employee indicating that she would

participate in the scheduled September 3, 2013 hearing.

       On September 3, 2013, a telephonic hearing was held with an administrative law

judge (the “ALJ”). At the start of the hearing, Employee indicated that she did not

submit any documents to be considered by the ALJ. The ALJ heard testimony from

Employee and Pearline Harris, a program specialist on behalf of DWD. Harris testified

that the base period for Employee’s April 7, 2013 claim was the “entire calendar year of

2012,” that no wages were reported for Employee during the base period, and that as a

result Employee was not eligible for unemployment benefits with respect to her April 7,




                                              3
2013 claim.5 Transcript at 17. Employee also testified that she did not work or have

earnings during the calendar year 2012.                   With respect to her October 2011 claim,

Employee testified consistent with the statement she made in her letter appeal, and that

the claimant handbook did not discuss expired benefits or what to do if there was a

remaining balance. Employee also testified that, when she made the April 7, 2013 claim,

she was attempting to receive the remaining balance from her initial claim and “it wasn’t

anything to do with the [EUC] benefits that [she] was getting.” Id. at 22.

        With respect to Employee’s October 2011 claim, the ALJ then asked Harris

whether Employee would have any eligibility for any remaining balance of benefits after

the end of the benefit period, and Harris responded in the negative. She explained that

the benefit period ending date for the claim was October 6, 2012, that “any funds that

were left in that claim would go into the unemployment pool,” and that Employee “would

not be eligible for those funds.” Id. at 23. The ALJ clarified Harris’s testimony that,

once Employee reached the end of the benefit year, she was no longer eligible to draw

any more funds, regardless of whether there was a remaining balance. The ALJ later

explained that a regular claim for unemployment benefits remains open for fifty-two

weeks and that, during that period of time, a person is generally eligible to draw benefits

for up to twenty-six weeks.




        5
          Harris also testified that the base period “is the first four quarters out of the last five completed
quarters prior to filing.” Transcript at 17. Harris further testified that a claimant must have at least
$4,200 of wages in the claimant’s base period, that of that amount the claimant must have $2,500 in the
last six months of the base period, and that the amount earned during the base period must be at least 1.5
times the highest earning quarter of the base period.
                                                      4
       On September 5, 2013, the ALJ issued a decision which found that Employee was

ineligible to receive additional unemployment benefit payments. The ALJ’s decision

provided in part:

       FINDINGS OF FACT: [Employee] filed a claim for unemployment
       benefits [on] approximately April 7, 2013. . . . A request for an appeal was
       received on May 28, 2013. [Employee] filed an appeal in attempt to
       receive benefits from a prior claim that had a benefit year ending date of
       October 6, 2012. [Employee] then began receiving benefits under a federal
       extended unemployment compensation claim. [Employee] then filed a new
       claim with a benefit year ending date of April 5, 2014.

       The [ALJ] finds that [Employee] had a base period of such claim which
       included the entire calendar year of 2012. Further, the [ALJ] finds that
       [Employee] had no wages from employment during the year of 2012.
       [Employee] was denied eligibility for benefits under the new claim because
       she lacked sufficient wage credits.

       CONCLUSIONS OF LAW: . . . .

       Indiana Code Section 22-4-14-5 requires an individual to meet certain
       earning requirements during the base period in order to establish an
       unemployment claim. Those earnings have to occur during the individual’s
       base period. The base period is defined in Indiana Code Section 22-4-2-12
       as the first four of the last five quarters immediately proceeding [sic] the
       first day of an individual’s benefit period. The benefit period is defined in
       Indiana Code Section 22-4-2-21 as the 52 consecutive week period
       beginning with the first week as of which an insured worker first filed an
       initial claim for determination of his insured status. Typically, an
       individual can only draw regular unemployment benefits for twenty-six
       (26) weeks during the benefit period with possible federal unemployment
       compensation extending the period of time in which benefits might be
       received. After the close of the benefit year no additional benefits may be
       received based upon such claim. Eligibility must be established for each
       benefit period.

       Indiana Code Section 22-4-14-5 describes the eligibility criteria which an
       individual must meet during their base period. An individual must have at
       least $4,200.00 in total wage credits during the base period with at least
       $2,500.00 of such wage credits earned during the last two quarters of the
       base period. In addition, an individual must have total wage credits during
       the base period that are more than one and a half times the wages paid to
                                            5
      the claimant in the calendar quarter in which the individual’s wages were
      highest.

      The [ALJ] concludes that the claimant did not meet the eligibility criteria
      during her most recent benefit year because she had no wage credits from
      employment during her base period which included all of the calendar year
      2012. Further, the [ALJ] concludes that the eligibility period for drawing
      benefits for her prior claim had already closed. According[ly], the claimant
      is ineligible to receive unemployment benefits due to the insufficient wage
      credits earned in her most recent base period.

      DECISION: The claimant failed to timely file her request for an appeal
      but for good cause. The monetary determination represented by the Wage
      Transcript and Benefit prepared on April 10, 2013 is Affirmed. The
      claimant is ineligible to receive benefits.

Appellant’s Appendix at 3-4; Exhibits at 15-16.

      On September 10, 2013, Employee filed a letter appealing to the Board from the

decision of the ALJ. In her letter, Employee stated that she would like to be issued “the

remaining benefits” from her UI and EUC claims. Appellant’s Appendix at 8. Employee

attached certain documents to her appeal which had not been submitted to the ALJ, and

the documents included a printout dated September 10, 2013 of Employee’s claimant

homepage showing her various claims (which included, for each claim, the claim’s

maximum benefit amount, weekly benefit amount, benefits paid to date, the remaining

balance, and the status of the claim) and an online article posted on January 3, 2013,

describing the U.S. House of Representatives’ decision to renew federally-funded EUC

benefits through 2013.

      On October 7, 2013, the Board issued a decision in which it stated that no

additional evidence was accepted by the Board and affirmed the decision of the ALJ,




                                           6
adopting and incorporating the findings of fact and conclusions of law of the ALJ.

Employee now appeals the Board’s decision.

                                      DISCUSSION

      The issue is whether the Board erred in concluding that Employee was not entitled

to additional unemployment benefit payments. We note that, although Employee is

proceeding pro se, such litigants are held to the same standard as trained counsel and are

required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.

2004), trans. denied. Employee contends that she has submitted evidence from her

WorkOne account that shows she has a remaining balance of $574 that has not been

issued with her October 2011 claim, that all benefits should be paid to her, that the Board

should have considered the documents she submitted with her appeal, and that this court

should reverse the Board’s decision and grant her additional weeks of benefits under her

EUC claim. The Board maintains that Employee did not show good cause why the

additional evidence she presented should be considered, the Board’s decision that

Employee could not claim benefits from a benefit period after the period had passed is in

accordance with law and supported by the facts, and that Employee for the first time

seeks to appeal the ending of her EUC benefits and she has waived that issue.

      The standard of review on appeal of a decision of the Board is threefold: (1)

findings of basic fact are reviewed for substantial evidence; (2) findings of mixed

questions of law and fact—ultimate facts—are reviewed for reasonableness; and (3) legal

propositions are reviewed for correctness.      Recker v. Review Bd. of Ind. Dep’t of

Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011) (citing McClain v. Review Bd. of


                                            7
Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind. 1998), reh’g denied).

Ultimate facts are facts that involve an inference or deduction based on the findings of

basic fact. Id. (citing McClain, 693 N.E.2d at 1317). Where such facts are within the

special competence of the Board, the Court will give greater deference to the Board’s

conclusions, broadening the scope of what can be considered reasonable. Id. (citing

McClain, 693 N.E.2d at 1318).

       To the extent Employee challenges findings of basic fact, our review of the record

reveals substantial evidence of the findings of basic fact of the ALJ and the Board. See

Recker, 958 N.E.2d at 1139.

                      Employee’s October 2011 Claim for UI Benefits

       With respect to Employee’s October 2011 claim for UI benefits, the testimony

before the ALJ and the ALJ’s comments were consistent with the provisions of Ind. Code

§§ 22-4. Ind. Code § 22-4-2-21 provides in part that a “‘[b]enefit period’ with respect to

any individual means the fifty-two-consecutive-week period beginning with the first

week as of which an insured worker first files an initial claim for determination of his

insured status . . . .” Ind. Code § 22-4-12-4(a) provides in part that “the maximum total

amount of benefits payable to any eligible individual during any benefit period shall not

exceed twenty-six (26) times the individual’s weekly benefit, or twenty-eight percent

(28%) of the individual’s wage credits with respect to the individual’s base period,

whichever is less.”6 Also, Ind. Code § 22-4-2-22 provides that a “‘[v]alid claim’ means a


       6
         Employee’s claimant homepage included in the appellant’s appendix indicates that the
maximum total amount of benefits payable to Employee during the benefit period beginning October 9,
2011 and ending October 6, 2012 was $2,584 and that she had been paid $2,010. The Wage Transcript
and Benefit Computation related to the October 9, 2011 claim for UI benefits is not included in the
                                                8
claim filed by an individual who has established qualifying wage credits and who is

totally, partially, or part-totally unemployed; Provided, no individual in a benefit period

may file a valid claim for a waiting period or benefit period rights with respect to any

period subsequent to the expiration of such benefit period.”

       The DWD’s Unemployment Insurance Claimant Handbook, under the heading

“How Long May I Receive Benefits,” states “[y]ou may draw regular unemployment

insurance benefits for up to 26 weeks, or until your maximum benefit amount [] has been

reached,” that “[y]our claim is good through your benefit year end (BYE) date,” that

“[y]our benefit year consists of the 52 weeks beginning with the first week you filed your

claim,” and that “[y]our BYE date is listed on your home page.”                  Unemployment

Insurance Claimant Handbook (Rev. 12-13-2013), at 12, available at http://www.in.gov/

dwd/files/Claimant_Handbook.pdf. As noted in the Claimant Handbook, in order to

receive weekly unemployment benefits, a claimant must file weekly claim vouchers

certifying certain information, including among other things the claimant’s work search

efforts, whether the claimant had any earnings and the amount of such earnings, whether

the claimant refused an offer of work, and whether the claimant was ready, willing, and

able to accept full-time work. Id. at 15. A claimant may not receive a full weekly benefit

payment if the claimant does not file the required weekly claim voucher or if other

information provided in the claim voucher necessitates a partial or full reduction of the

benefit payment (such as the claimant received wages during the week, was unable to

work, failed to look for full-time work, etc.). See id. at 14-16.


record, and Employee has not challenged the determination of the maximum payable benefits under the
claim.
                                                9
      It is possible that a claimant may ultimately receive total unemployment benefit

payments during a claim’s benefit period which, in sum, are less than the claim’s

maximum benefit amount shown on the claimant’s wage transcript and benefit

computation or claimant homepage, and this could occur for a variety of reasons

including, among others, a failure of the claimant to file weekly vouchers or a reduction

of benefits based upon the information provided by a claimant as discussed in part above.

The record in this case does not disclose the reason Employee did not receive the

maximum benefit amount with respect to her October 9, 2011 claim during the claim’s

benefit period. Nevertheless, Employee has not cited to the record or authority to show

that she is entitled to continue to receive UI benefits under the claim following the

expiration of the benefit period on October 6, 2012, or that she submitted weekly claim

vouchers for, and was otherwise eligible in all respects to receive, additional weekly

benefit payments which were declined during the benefit period. Employee has not

shown she was entitled to receive all or any portion of the remaining or unclaimed

balance of $574 of her UI benefits as shown on her claimant homepage with respect to

her October 9, 2011 claim.

                   Employee’s October 2012 Claim for EUC Benefits

      With respect to Employee’s October 28, 2012 EUC claim, her May 28, 2013

appeal from the deputy’s determination requested the remaining benefits of her initial UI

claim only and her testimony during the hearing before the ALJ related to the remaining

balance shown on her claimant homepage with respect to her UI claim and not to any




                                           10
issue regarding the exhaustion or extension of her EUC claim.7 Further, Employee’s

September 10, 2013 letter appealing from the ALJ’s decision requested the remaining

benefits of her initial UI and EUC claims, and she did not specifically request or appeal

the denial of any request for an extension of her EUC benefits.8 Employee may not raise

the issue of the length or extension of her benefits under her EUC claim for the first time

on appeal. See Miller v. Ind. Dep’t of Workforce Dev., 878 N.E.2d 346, 353 (Ind. Ct.

App. 2007) (noting that we may find waiver where a party to an administrative appeal

raises an issue for the first time on appeal).

                                    Employee’s April 2013 Claim

        Finally, with respect to Employee’s April 7, 2013 claim, we note that Employee

states in her appellant’s brief that she was not applying for new UI benefits but applying




        7
           In her reply brief, Employee argues that she gave testimony at the hearing before the ALJ
regarding not receiving her remaining balance and extending her EUC claim and cites to two pages of the
hearing transcript. The portions of the transcript to which Employee cites include her testimony regarding
why she filed her May 28, 2013 appeal, namely, because her EUC benefits had ended, she visited a
WorkOne office and was informed by a representative that her EUC claim benefit amount had been
exhausted, and she learned of or requested at that time the remaining balance with respect to her initial UI
benefits claim. Employee specifically testified that she “was trying to get . . . the remaining balance from
[her] initial claim and [her appeal] wasn’t anything to do with the [EUC claim] benefits that [she] was
getting.” Transcript at 22. In short, Employee did not present argument or evidence before the ALJ or
request any benefits on the grounds that she was entitled to additional benefits under her EUC claim.
        8
           The copy of Employee’s claimant homepage which she wished for the Board to consider after
the hearing before the ALJ shows that the EUC claim had a start date of October 28, 2012 and an end date
of December 28, 2013, that Employee’s weekly benefit amount under the claim was $119, that Employee
received a total of $3,615 under the claim, that there was no remaining balance with respect to the claim,
and that her last voucher was paid on May 13, 2013. Employee testified at the hearing before the ALJ
that she was informed by a WorkOne representative that the benefit amount under the EUC claim had
been exhausted. When asked why Employee was unable to receive the remaining balance of her initial UI
claim, Harris, apparently responding to Employee’s question with respect to the EUC claim rather than
the initial UI claim, testified that the benefits of that claim were exhausted, that the last benefit amount
was paid on May 13, 2013, and that Employee received all the benefits of that claim. The information on
Employee’s claimant homepage was consistent with the evidence before the ALJ and Board.

                                                    11
to receive the remaining balance of her October 2011 claim.9 We note that, under Ind.

Code § 22-4-2-12, the four quarters in the calendar year 2012 constituted Employee’s

base period with respect to a claim for benefits filed on April 7, 2013, and that Harris and

Employee testified that Employee had no eligible earnings or wages during that base

period. Accordingly, to the extent Employee filed a claim for UI benefits on April 7,

2013, Employee was ineligible for such benefits. See Ind. Code § 22-4-2-12 (providing

in part that an individual’s base period with respect to a claim is the first four of the last

five completed calendar quarters immediately preceding the first day of an individual’s

benefit period); Ind. Code § 22-4-14-5(c) (providing wage credit requirements for

eligibility for benefits and providing in part that an individual must have wage credits in a

total amount of no less than $4,200 in the four calendar quarters of the individual’s base

period).

                               Employee’s Additional Evidence

       With respect to Employee’s argument that the Board erred in failing to accept the

evidence she wished to present following the hearing before the ALJ, we note that the

decision to accept additional evidence is a decision left to the discretion of the Board.

Telligman v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 996 N.E.2d 858, 865 (Ind. Ct.

App. 2013) (citing Tiller v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 974 N.E.2d 478,

481 (Ind. Ct. App. 2012)). “The rule requires a party offering additional evidence to

show good cause why such evidence should be accepted and good reason why it was not




       9
          However, in her reply brief, Employee states that she does not waive or concede any issues
regarding the April 7, 2013 claim.
                                                12
introduced before the ALJ.”10 Id. (citation omitted). We observe that Employee was

notified that any documents she wished the ALJ to consider must be received by the

DWD at least twenty-four hours before the scheduled hearing and that Employee did not

submit the documents, which were available to her, at that time.11

       Employee’s argument is premised on her belief that the additional evidence, if

considered by the ALJ and Board, would have disclosed that she is entitled to the amount

of $574 shown as the remaining balance on her claimant homepage with respect to her

October 2011 claim for UI benefits. However, we cannot say that the Board, if it had

accepted and considered the additional evidence Employee wished to present, would have

credited the additional evidence in the same way Employee does.

       The evidence before the ALJ and Board included the testimony of Employee and

Harris regarding the October 9, 2011 claim for UI benefits. Specifically, Employee

testified that, after the end date of the benefit period, her online claimant homepage

showed there was a remaining balance of $574 and that the claim was expired. Harris

testified that Employee was not eligible to receive any portion of the amount of $574

shown as a remaining balance on Employee’s claimant homepage following the

expiration of the claim’s benefit period on October 6, 2012. The additional evidence

       10
            646 IAC 5-10-11(b) (2011) provides:

               Each hearing before the review board shall be confined to the evidence submitted
       before the administrative law judge unless it is an original hearing. Provided, however,
       the review board may hear or procure additional evidence upon its own motion, or upon
       written application of either party, and for good cause shown, together with a showing of
       good reason why the additional evidence was not procured and introduced at the hearing
       before the administrative law judge.
       11
          Employee stated at the hearing that she did not submit a copy of her claimant homepage
because she believed that the information was already available to the ALJ as she accessed the
information online from DWD’s system.
                                                  13
Employee wished to present to the Board consisted in part of a copy of Employee’s

claimant page, printed on September 10, 2013, showing that the benefit period for the

claim was October 9, 2011 to October 6, 2012, that the maximum benefit that could be

paid to Employee under the claim was $2,584, that Employee’s weekly benefit amount

was $134, that $2,010 had been paid to Employee under the claim, that the remaining

balance under the claim was $574, and that the claim’s status, as of September 10, 2013,

was expired. Employee does not show, and we cannot say, that this additional evidence

supports a determination other than the one made by the ALJ and Board.

         In addition, the other document included in the evidence Employee wished for the

Board to consider consisted of an article posted on January 3, 2013, describing the U.S.

House of Representatives’ decision to renew federally-funded EUC through 2013.

However, as discussed above, Employee did not raise an issue in the proceedings before

the ALJ or Board below regarding the length or extension of her benefits under her EUC

claim.

         We conclude that the Board did not err or abuse its discretion when it did not

accept her additional evidence. See Telligman, 996 N.E.2d at 866 (finding that we

cannot say that the Board, if it had accepted and considered the additional evidence

Telligman wished to present, would have credited the additional evidence in the same

way Telligman does, and holding that the Board did not err or abuse its discretion when it

did not accept Telligman’s additional evidence); Tiller, 974 N.E.2d at 482 (holding that

we had “no reason to assume the Board would have credited the additional evidence in




                                            14
the same way [the claimant] does” and that the Board did not abuse its discretion when it

did not consider the claimant’s additional evidence).

                                     CONCLUSION

      Based upon the record, we conclude that the ALJ and Board did not err in finding

that Employee was not entitled to additional unemployment benefit payments and that the

Board did not abuse its discretion or err in declining to accept additional evidence.

Accordingly, and for the foregoing reasons, we affirm the decision of the Board.

      Affirmed.

ROBB, J., and BARNES, J., concur.




                                            15
