dissenting.
I respectfully dissent from the majority’s decision to reverse the determination of the Review Board of the Indiana Department of Workforce Development (Review Board) which found the Hamilton Heights School Corp. (Hamilton Heights) liable for unemployment benefits. Two hearings occurred in this case, a telephone hearing on July 17, 2012 (July Hearing), which was preceded by notice on July 6, 2012 (July Notice); and an in person hearing on August 21, 2012 (August Hearing), which was preceded by notice on August 9, 2012 (August Notice). Based upon the inattentiveness of the person charged with calendaring the hearing, Hamilton Heights assumed that the August Hearing was to be held by phone and thus failed to appear in person. Sherri Stepp (Stepp), a custodian who worked for Hamilton Heights for more than 16 years, was awarded unemployment insurance benefits because no present evidence was presented in opposition to her claim.
In deeming the foregoing a due process violation, the majority excuses Hamilton Heights’ failure to participate based on language contained in the notices and ancillary documentation as well as the school’s assumption that the July Hearing would be conducted in the same manner as the August Hearing. We are therefore left with the following legal precedent: an employer is denied due process by failing to participate at an unemployment compensation hearing when such failure is caused by a) the employer’s reliance on procedures followed at a prior hearing and b) its confusion resulting from the language contained in the notice of a subsequent hearing. However, I am constrained to find a simple failure to read tantamount to a due process violation for the following reasons.
First, the August Notice was sufficiently obvious to dispel any notion that the August Hearing was to be held by telephone. Hamilton Heights concedes that it received the August Notice but argues that its failure to participate is excused by the language in the August Notice, which it found confusing. However, as the majority recognizes, the words “IN PERSON HEARING” appear in all capital letters in the caption to the August Notice. (Appellant’s App. p. 36). This is in clear contrast to the July Notice, with its caption providing only the words “NOTICE OF HEARING” in plain type. (Appellant’s App. p. 3).
*1282Further, the details of the August Hearing appear below the caption , and list the administrative law judge’s (ALJ) name, along with the time and place of the hearing in bold, underlined typeface:
Administrative Law Judge: [S: * * ⅜ * * * *
Hearing Day, Date, and Time: Tuesday, August 21, 2012 at 10:15 AM Eastern
Place of Hearing: Indiana Department of Work Force Development 100 North Senate Avenue, N800 Indianapolis, IN 46204
(Appellant’s App. p. 41) (emphases in original). This differs from the July Notice, which provided in part:
Administrative Law Judge: [* * ****** *]
Hearing Day, Date, and Time: Tuesday, July 17, 2012 at 10:00 AM Eastern
Place of Hearing: BY TELEPHONE (you will receive a call from the Judge at the number you provide on the Acknowledgement Sheet)
(Appellant’s App. p. 8) (emphases in original).
Confronted with these inescapable distinctions, the majority cites explanatory language contained 1) at the bottom of each notice, 2) in the acknowledgement form; and 8) the accompanying instruction sheet. However, the language at the bottom of each notice simply provides general information pertaining to both telephone and in person hearings. The instruction sheet provides general information for both types of hearings but also advises that it “cannot be used as law or rule or for any other purpose.” (Appellant’s App. pp. 5, 43). The acknowledgment forms distinguish between in person and telephonic hearings, with the form accompanying the August Notice specifically stating, “Telephone Number for In-Person Hearing.” (Appellant’s App. p. 45). Even if these instructions of general applicability were somehow confusing to Hamilton Heights, I do not conclude that it overcomes the otherwise explicit language appearing in the caption and body of both notices.
Second, when matters coming within the control of a party prevent its participation in a hearing, this court has consistently found no denial of due process. “A party who receives notice of an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the party received actual notice of the hearing and failed to appear at or participate in the hearing.” Art Hill, Inc. v. Review Bd. of Indiana Dept. of Workforce Development, 898 N.E.2d 363, 368 (Ind.Ct.App.2008). In Art Hill, we concluded that an employer that gave an incorrect telephone extension number to the ALJ was not denied a fair hearing, despite calling the ALJ “until fifteen minutes after the scheduled beginning of the hearing.” Id. In Wolf Lake Pub, Inc. v. Review Bd. of Indiana Dept. of Workforce Development, 930 N.E.2d 1138, 1142 (Ind.Ct.App.2010), an employer who went “on vacation in a mountainous region without [... ] reliable cell phone reception” and who stayed in “a hotel without telephones in the rooms” was not denied a reasonable opportunity to participate. In S.S. v. Review Bd. of Indiana Dept. of Workforce Development, 941 N.E.2d 550, 555 (Ind.Ct.App.2011), reh’g denied, parties who confused time zones and thus failed to participate in a hearing were not denied an opportunity to be heard. However, in A.Y. v. Review Bd. of Indiana Dept. of Workforce Development, *1283948 N.E.2d 373, 379 (Ind.Ct.App.2011), tram, denied, we reversed and remanded for a determination of whether a claimant, who alleged that she provided her correct telephone number yet did not receive a call from the ALJ and thereafter called within the time allotted for her hearing, had shown good cause for reinstatement of her appeal. The foregoing cases illustrate that matters within the control of the party that prevent them from participation in a hearing do not deprive that party of a fair hearing. Hamilton Heights’ arguments to the contrary are unavailing as it is clear that its inability to attend the August Hearing stems from its inattentiveness to the August Notice.
Third, equity weighs in favor of a claimant who, as opposed to the team of school personnel allied against her, was capable of determining the obvious-that she must attend an in person hearing on her unemployment claim. Although Hamilton Heights argues the unfairness of having Stepp awarded unemployment insurance, it would be inequitable to Stepp to conclude otherwise. Stepp read the August Notice and attended the in person August Hearing. Hamilton Heights’ inattentiveness to the August Notice was something under its control and as a result it waived its right to a fair hearing. I would therefore affirm the Review Board’s decision.