Opinion
22A-EX-197
07-18-2022
W. V., Appellant-Petitioner, v. Review Board of the Indiana Workforce Development and the Indiana Department of Workforce Development, Appellee-Respondent.
APPELLANT PRO SE W.V. EVANSVILLE, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA BENJAMIN M. JONES DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA LEAH M. MELDRUM JAY R. S. PARKS INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Review Board of the Department of Workforce Development The Honorable Gabe Paul, Chairman Trial Court Cause No. 21-R-6345
APPELLANT PRO SE W.V. EVANSVILLE, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA
ATTORNEY GENERAL OF INDIANA
BENJAMIN M. JONES DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
LEAH M. MELDRUM
JAY R. S. PARKS
INDIANA DEPARTMENT OF WORKFORCE
DEVELOPMENT
INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, W.V., appeals the determination of Appellee-Respondent, the Review Board of the Indiana Department of Workforce Development (Review Board), affirming the dismissal of his appeal following the denial of Pandemic Unemployment Assistance (PUA) benefits by an administrative law judge (ALJ).
[¶2] We affirm. ISSUE
[¶3] W.V. presents this court with at least five issues, one of which we find to be dispositive and restate as: Whether his PUA benefits appeal was properly dismissed after he failed to participate in his appeal hearing.
FACTS AND PROCEDURAL HISTORY
[¶4] In 2020, W.V. received PUA benefits which were administered by the Indiana Department of Workforce Development (DWD). On December 16, 2020, a DWD claims adjuster issued a notice of determination to W.V. suspending his PUA benefits as of the week ending November 21, 2020. The claims adjuster's determination was
based on [DWD's] investigation and the available information that [W.V.] may be eligible for an unemployment claim in Kentucky. To be eligible for PUA, the claimant must not be eligible for an unemployment claim or any federal or state unemployment extension in any other state.(Transcript Vol. III, p. 3). On December 17, 2020, W.V. filed his PUA Appeal and Request for Hearing appealing the denial of his PUA benefits and asserting that he had no contacts with the state of Kentucky that would entitle him to benefits there.
[¶5] On October 8, 2021, DWD's Unemployment Insurance Appeals Division issued W.V. a Notice of Telephone Hearing (Notice of Hearing) providing that the matter of his PUA eligibility would be heard "BY TELEPHONE" by the ALJ on "October 20, 2021 at 9:15 a.m. Indianapolis time." (Tr. Vol. III, p. 7). The Notice of Hearing also provided "IMPORTANT INFORMATION ABOUT THIS PROCESS", including that the claimant must fill out and return the enclosed Acknowledgement Sheet, provide only one telephone number on the Acknowledgement Sheet, and that "[a]t the scheduled date and time of your hearing the Judge will call YOU at THIS telephone number." (Tr. Vol. III, p. 9). In the Appeals Hearing Instructions attached to the Notice of Hearing, claimants were advised of the following:
Confirm the date, time, and location of your hearing. Check your Notice of Hearing to verify whether your hearing is by telephone or in-person. Some Indiana counties are in different time zones. Your hearing will start at the time and time zone listed on the Notice of Hearing. It is your responsibility to know which time zone you are located in and what time the hearing will take place and participate on that date and time.
Both the claimant and the employer must be prepared to present their case at this hearing because all future appeals/reviews will be based on the record of this hearing . . . If the judge is not able to reach you, regardless of the cause, it may be considered as a lack of response and participation in the hearing. A decision or dismissal may be issued by the judge even if you do not participate.
* * *
The judge may dismiss your case if the party who filed the appeal cannot be reached within fifteen (15) minutes of the scheduled start time of your hearing . . . You cannot call in and be connected to a hearing that is already in progress.(Tr. Vol. III, pp. 10, 11) (emphasis added). Finally, the Notice of Hearing provided that if a claimant had any questions, the Appeals Division could be contacted at a provided telephone number.
[¶6] The Acknowledgement Sheet accompanying the Notice of Hearing listed the date and time of the hearing as "October 20, 2021 at 9:15 AM Indianapolis hearingTime [sic]". (Tr. Vol. III, p. 14). A highlighted box on the Acknowledgment Sheet labeled "IMPORTANT" provided that "[i]f you do not appear at the hearing, the [ALJ] could issue a decision that would be unfavorable to you" including, if you are the claimant, a decision that "[y]ou may have to pay back benefits you have received." (Tr. Vol. III, p. 15). W.V. filled out and returned the Acknowledgement Sheet, indicating that he would participate in the hearing and providing his telephone number.
[¶7] On October 20, 2021, at 9:17 a.m., the ALJ telephoned W.V. at the number he had provided on the Acknowledgment Sheet. The call went to W.V.'s voicemail. The ALJ left a message that she was calling regarding W.V.'s appeal, she would attempt to call W.V. again in a few minutes, and that W.V. could not call in for the hearing, so W.V. must wait for her to call back. The ALJ advised W.V. that if she was unable to reach him, she would dismiss his appeal. At 9:32 a.m., the ALJ attempted to telephone W.V. a second time at the number he had provided. The call again went to W.V.'s voicemail. The ALJ left a message that W.V.'s appeal would be dismissed because she had been unable to reach him. On October 20, 2021, the ALJ issued a Notice of Dismissal of W.V.'s appeal of his denial of PUA benefits due to W.V.'s failure to appear at the scheduled hearing.
[¶8] On October 21, 2021, W.V. appealed the ALJ's decision to the Review Board by filing his PUA Review Board Appeal and Request to Submit Additional evidence in which he stated that he had missed the ALJ's calls "due to the time difference between the cities" and that he had been checking his voicemail when the ALJ's second call came through. (Appellant's App. Vol. II, p. 3). The Review Board did not hold a hearing on W.V.'s appeal or consider additional evidence. On January 7, 2022, the Review Board issued its decision adopting and affirming the ALJ's dismissal of W.V.'s PUA benefits appeal.
[¶9] W.V. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶10] W.V. appeals the Review Board's decision affirming the ALJ's dismissal of his PUA benefits appeal. "When the decision of the Review Board is challenged, an appellate court makes 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 fact." J.M. v. Review Bd. of the Ind. Dep't of Workforce Dev., 975 N.E.2d 1283, 1286 (Ind. 2012) (internal quotes omitted). We review determinations of specific or basic underlying facts, the conclusions or inferences to be drawn from those facts, and conclusions of law. Id. In conducting our review, we do not reweigh the evidence or judge the credibility of witnesses, and we consider only the evidence most favorable to the Review Board's findings. Id. "We will reverse the decision only if there is no substantial evidence to support the Review Board's findings." Id. However, we review the legal conclusions of the Review Board de novo and assess whether the Board "correctly interpreted and applied the law." Whiteside v. Ind. Dep't of Workforce Dev., 873 N.E.2d 673, 675 (Ind.Ct.App. 2007).
II. Waived Arguments
[¶11] W.V. raises at least five arguments on appeal, including challenges to the merits of the DWD claims adjuster's denial of his PUA benefits (Issues I and V); an argument that the denied PUA benefits are payable to W.V. through another benefits program, Pandemic Emergency Unemployment Compensation (PEUC) (Issue II); and an argument or objection that the information relied upon by the claims adjuster to determine that W.V. may be eligible for benefits in Kentucky was never disclosed to W.V. or made part of the record below (Issue V). These issues relate to the merits of W.V.'s appeal from the denial of his PUA benefits, an appeal which was dismissed by the ALJ on October 20, 2021. Apart from the fact that W.V. has not presented us with any legal authority indicating that we may review the merits of an appeal that was dismissed by the ALJ, he does not support the substance of these appellate arguments with any legal authority. Indiana Appellate Rule 46(8)(a) mandates that appellate arguments contain cogent reasoning supported "by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]" We observe that W.V. appears pro se in this appeal. However, on appeal from the decisions of the Review Board, we hold pro se litigants to the same standard as trained attorneys. T.B. v. Review Bd. of Ind. Dep't of Workforce Dev., 980 N.E.2d 341, 345 (Ind.Ct.App. 2012). A litigant's failure to support his arguments with cogent reasoning, legal authority, and citations to the record results in the waiver of his claims for our consideration. Id. Accordingly, we agree with the Review Board that W.V. has waived these claims. Issue II is not properly before us for the additional reason that it was not raised below. See Cunningham v. Review Bd. of Ind. Dep't of Workforce Dev., 913 N.E.2d 203, 205 (Ind. 2009) (concluding that Cunningham's argument that her appeal was timely filed was waived because it was not raised to the ALJ or the Review Board). Therefore, we will address only those claims raised by W.V. that relate to the dismissal of his PUA benefits appeal.
The issues presented in W.V.'s Statement of the Issues do not correspond to those presented in his Argument.
III. Dismissal of PUA Benefits Appeal
[¶12] The Review Board adopted and affirmed the ALJ's dismissal of W.V.'s PUA benefits appeal due to W.V.'s failure to participate in the October 20, 2021, hearing. The gravamen of W.V.'s claims regarding his failure to participate in the hearing is that his appeal should not have been dismissed "solely on a missed phone call." (Appellant's Br. p. 14). W.V. does not contest that he failed to answer the ALJ's two telephone calls on October 20, 2021. Rather, W.V. contends that (1) there was an error in the Acknowledgment Sheet "making it unclear that a different time zone [was] being used" for the hearing; and (2) while W.V. was listening to the ALJ's first voicemail, the ALJ called again, and "due to technical reasons, the phone simply would not drop the voicemail call to answer the incoming call." (Appellant's Br. pp. 14, 15).
[¶13] The Acknowledgement Sheet that W.V. filled out and returned to the DWD provided the date and time of the hearing as "October 20, 2021 at 9:15 AM Indianapolis hearingTime [sic]". (Tr. Vol. III, p. 14). While we agree with W.V. that the Acknowledgement Sheet contained a typing error in that there is a space missing between the words "hearing" and "Time", W.V. does not explain how this error injected uncertainty into the meaning of the information conveyed, especially in conjunction with the fact that the Notice of Hearing that accompanied the Acknowledgement Sheet informed W.V. that the matter of his PUA eligibility would be heard "BY TELEPHONE" by the ALJ on "October 20, 2021 at 9:15 a.m. Indianapolis time." (Tr. Vol. III, p. 7). Therefore, we cannot conclude that W.V. was somehow misled as to the time scheduled for the hearing.
[¶14] Inasmuch as W.V. asserts that his appeal was wrongfully dismissed because he was confused about what time zone was applicable to the scheduling of the October 20, 2021, hearing, we addressed a similar contention in S.S. v. Review Board of the Indiana Department of Workforce Development, 941 N.E.2d 550 (Ind.Ct.App. 2011). S.S.'s benefits appeal was dismissed by the ALJ after S.S. failed to answer the ALJ's scheduled telephone call for the hearing. Id. at 553. S.S. appealed to the Review Board, arguing that she had failed to answer the call in part because she had been confused about the time zone applicable to the scheduled hearing time. Id. at 553-54. In upholding the Review Board's decision not to reinstate S.S.'s appeal, we observed that S.S. had received written instructions that it was her responsibility to know which time zone she was in and when the hearing would take place and that in relying on her confusion regarding time zones, S.S. had failed to "point to any circumstances outside of her control which caused her to miss the telephonic hearing[.]" Id. at 555, 557-58. We concluded that S.S. had failed to show good cause to reinstate her benefits appeal and affirmed the Review Board's decision. Id. at 558.
[¶15] We reach a similar result here regarding W.V.'s contentions that he was confused about the time the hearing would take place and that he missed the ALJ's second call because his telephone would not disengage from his voicemail to answer the ALJ's incoming call. W.V. was informed that the hearing would take place at 9:15 a.m. Indianapolis time on October 20, 2021, some Indiana counties are in different time zones, his hearing would start at the time and time zone listed on the Notice of Hearing, and that it was his "responsibility to know which time zone you are located in and what time the hearing will take place and participate on that date and time." (Tr. Vol. III, p. 10). W.V. was also informed that if he had any questions regarding the hearing, he could contact the DWD before the hearing. There is no evidence before us that W.V.'s choice of telephone or his ability to operate it effectively to meet his needs depended on anyone but himself. Thus, neither of W.V.'s proffered reasons for missing his hearing were circumstances outside his control which excused his failure to attend the hearing. See id. at 557-58. Contrary to W.V.'s assertions in his reply brief, Lush v. Review Board of the Indiana Department of Workforce Development, 944 N.E.2d 492 (Ind.Ct.App. 2011), trans. denied, does not dictate another result. Lush is factually distinguishable in that the reason the claimant missed the ALJ's call, namely, that the union hall telephone operator did not connect the ALJ to Lush when the ALJ called in for the hearing, was a circumstance entirely outside of Lush's control. Id. at 496.
[¶16] W.V. also argues that the Review Board erred when it issued its decision without holding a hearing or accepting any additional evidence. As his sole authority supporting this argument, W.V. draws our attention to a DWD website which he asserts directs claimants who are unsatisfied with an ALJ's decision as follows: "If you have additional information or documents that were not available at the time of the [ALJ] hearing, please include the information or documents with your appeal." (Appellant's Br. p. 17). However, even if we were to assume, without deciding, that the DWD website constitutes legal authority, nothing in this quoted material mandates that a Review Board hold a hearing. In addition, our review of the additional information submitted by W.V. to the Review Board concerning the circumstances relating to his failure to respond to the ALJ's calls are the same circumstances which we have already determined did not excuse his failure to participate in the hearing, namely, his confusion about time zones and the fact that he could not answer an incoming call while listening to a voicemail. Because W.V. has failed to establish that his PUA benefits appeal was improperly dismissed, we affirm the determination of the Review Board.
CONCLUSION
[¶17] Based on the foregoing, we conclude that, based on claims that are properly before us, W.V. has failed to establish that either the ALJ or the Review Board improperly dismissed his PUA benefits appeal.
[¶18] Affirmed.
[¶19] May, J. and Tavitas, J. concur