Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 26 2014, 9:51 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAMES C. TUCKER GREGORY F. ZOELLER
MARILYN TUCKER FULLEN Attorney General of Indiana
Tucker and Tucker, P.C.
Paoli, Indiana KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ORANGE COUNTY, )
)
Appellant-Petitioner, )
)
vs. ) No. 93A02-1403-EX-144
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and DANIEL HARRIS, )
)
Appellees-Respondents. )
APPEAL FROM THE REVIEW BOARD OF THE
INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
Case No. 14-R-00193
August 26, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Orange County appeals a determination by the Review Board of the Department of
Workforce Development (the Department) that the County’s appeal to the Review Board was
not timely filed. We affirm.
FACTS AND PROCEDURAL HISTORY
Daniel Harris worked for Orange County. An Administrative Law Judge (ALJ) for
the Department determined Harris was eligible for unemployment benefits because he was
discharged from his employment without just cause. The decision was mailed on October 31,
2013, and Orange County did not appeal the decision until January 24, 2014.
The Review Board heard evidence the ALJ’s decision was mailed to the correct
address and that Orange County had in the past received mailings from the Department at
that address. A witness for the County testified Harris’ decision was received January 13,
2014. Mail from the Department is sent to the county auditor, and that office has been at its
current address for several years. All mail from the Department is given to the auditor. The
auditor testified the deputy auditor handed her the document on January 13. But the auditor
also testified that “when I received this notice,” (Tr. at 7), “[I] asked our attorney if there had
been a decision and I wanted a copy of it.” (Id.) She also called and left a message with the
Department asking for a copy of the decision, but her call was not returned. The deputy
auditor testified the envelope in which the decision was mailed did not appear to be damaged
in any way. She did not recall whether she looked at the postmark.
The Review Board determined the County had “failed to provide credible or
persuasive evidence to establish that the Administrative Law Judge’s decision was delayed
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by more than two months,” (App. at 25), so the County had not shown good cause for its
untimely appeal. It dismissed the appeal.
DISCUSSION AND DECISION
Orange County challenges a decision of the Review Board. The Review Board
reviews ALJ decisions for errors of fact, law, or procedure based on the record before the
ALJ. Ind. Code § 22-4-17-5(e). The Review Board may “affirm, modify, set aside, remand,
or reverse the findings, conclusions, or orders of an administrative law judge.” Id. Under
Indiana’s Unemployment Compensation Act (the Act), “[a]ny decision of the review board
shall be conclusive and binding as to all questions of fact.” Ind. Code § 22-4-17-12(a).
Review Board decisions may, however, be challenged as contrary to law, in which case we
are limited to a two-part inquiry into: (1) the sufficiency of the facts found to sustain the
decision; and (2) the sufficiency of the evidence to sustain the findings of facts. Ind. Code §
22-4-17-12(f). Under this standard, we review (1) determinations of specific or “basic”
underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate
facts,” and (3) conclusions thereon. Saini v. Review Bd. of Ind. Dep’t of Workforce Dev., 5
N.E.3d 768, 772 (Ind. Ct. App. 2014).
The Review Board’s findings of basic fact are subject to a “substantial evidence”
standard of review. Id. We do not reweigh evidence or assess the credibility of witnesses,
and we consider only the evidence most favorable to the Review Board’s findings. Id. The
Review Board’s conclusions as to ultimate facts involve an inference or deduction based on
the findings of basic fact. Id. As such, they are typically reviewed to ensure that the Review
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Board’s inference is reasonable in light of its findings. Id. We are not bound by the Review
Board’s conclusions of law, though an interpretation of a statute by an administrative agency
charged with the duty of enforcing the statute is entitled to great weight unless the
interpretation is inconsistent with the statute itself. Id.
The parties to an ALJ’s eligibility determination “shall be duly notified of the decision
. . . and the reasons therefor, which shall be deemed to be the final decision of the review
board, unless within fifteen (15) days after the date of notification or mailing of such
decision, an appeal is taken by the commissioner or by any party adversely affected by such
decision to the review board.” Ind. Code § 22-4-17-3. Where, as here, an administrative
agency sends notice through the regular course of mail, a rebuttable presumption arises that
such notice is received. Value World Inc. of Ind. v. Review Bd. of Ind. Dep’t of Workforce
Dev., 927 N.E.2d 945, 948 (Ind. Ct. App. 2010). Evidence of deposit in a post office,
properly addressed and stamped, is prima facie proof a document was received by the person
to whom it was addressed. Id. We rely on the discretion of the factfinder to weigh evidence,
and will not reverse absent evidence leading solely to the opposite conclusion. Id. at 949.
The presumption of receipt is not conclusive, but neither is the statement by an
interested party of non-receipt. Id. It is then for the trier of fact to determine from all the
evidence and reasonable inferences to be drawn therefrom what occurred. Id. The Review
Board, sitting as trier of fact, concluded after hearing evidence that the presumption was not
overcome. We cannot say that evidence leads solely to a conclusion opposite that the Review
Board reached.
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Here, the Review Board treated the matter as a question of fact and of witness
credibility. It considered the manner in which Orange County processed mail, noted the
County had consistently received mail without incident, and then found the County’s
evidence was not “credible or persuasive.” (App. at 25.) Considering those facts in light of
the presumption Orange County received the notice, and the absence of evidence to
demonstrate a reason the notice might not have successfully made it to Orange County in a
timely manner,1 we conclude the Review Board’s decision was not error. We must decline
Orange County’s invitation to judge the credibility of the witnesses, and we accordingly
affirm.
Affirmed.
VAIDIK, C.J., and FRIEDLANDER, J., concur.
1
Orange County points to Scott v. Review Bd. of Ind. Dep’t of Workforce Dev., 725 N.E.2d 993, 996 (Ind. Ct.
App. 2000), and Forni v. Review Bd. of Ind. Dep’t of Workforce Dev., 900 N.E.2d 71, 73 (Ind. Ct. App. 2009),
trans. denied, for the premise that if notice is not actually received in time, further proceedings must be
permitted. Those decisions do not require a contrary result in the case before us, as in both the trier of fact
determined the presumption of receipt had been rebutted. See Scott, 725 N.E.2d at 996 (“[b]ecause both
parties agree that Scott did not receive actual notice of the July 6, 1999 hearing until July 11, 1999, . . . the
presumption of receipt is rebutted”); Forni, 900 N.E.2d at 73 (“the Board does not dispute that Forni did not
receive actual notice prior to the hearing; therefore, the presumption has been rebutted”). Here, the
presumption was not rebutted.
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