Opinion
23A-EX-2593
06-19-2024
M.H., Appellant-Claimant v. Review Board of the Indiana Department of Workforce Development, Appellees
ATTORNEY FOR APPELLANT Jeffrey A. Macey Macey Swanson LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEES Theodore E. Rokita Attorney General Abagail R. Recker Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Review Board of the Department of Workforce Development Gabriel Paul, Chairman Larry A. Dailey, Member Heather D. Cummings, Member Case Nos. 23-R-2352, 23-R-2353, 23-R-2354
ATTORNEY FOR APPELLANT
Jeffrey A. Macey
Macey Swanson LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Theodore E. Rokita
Attorney General
Abagail R. Recker
Deputy Attorney General
Indianapolis, Indiana
Weissmann and Foley Judges concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] M.H. appeals the decision of the Review Board of the Indiana Department of Workforce Development affirming the administrative law judge's decision that M.H. didn't timely appeal the denial of unemployment benefits. We affirm.
Facts and Procedural History
[¶2] When the pandemic started in 2020, M.H. worked as a freelance videographer for several companies, including the employer in this case, S.M.S. LLC. According to M.H., he was laid off because of the pandemic and sought and received unemployment benefits. On May 10, 2023, a claims investigator with the Department of Workforce Development issued three Determinations of Eligibility that M.H. was not unemployed from S.M.S. LLC and therefore not entitled to unemployment benefits for the weeks ending:
April 11-October 3, 2020
October 10, 2020-April 3, 2021
April 17-May 1, 2021, and June 26-August 28, 2021Ex. pp. 3, 8, 14. The claims investigator sent the Determinations to M.H. that same day. Id. The Determinations informed M.H. of his right to appeal:
RIGHT OF APPEAL: THIS DETERMINATION WILL BECOME FINAL ON 05/22/2023 IF NOT APPEALED. EITHER PARTY MAY APPEAL THIS DETERMINATION AND REQUEST A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE WITHIN TEN DAYS OF THE DATE THIS DETERMINATION WAS SENT. PLEASE SEE REVERSE SIDE FOR APPEAL PROCEDURE.Id. (emphasis added); see also Ind. Code § 22-4-17-2(f) ("[U]nless the claimant or the employer, within ten (10) days after the notification required by subsection (e)[] was sent by the department to the claimant or the employer, asks for a hearing before an administrative law judge, the decision shall be final and benefits shall be paid or denied in accordance with the decision."). The reverse side provided the mailing address and fax number for the Department's Appeals Division. Ex. pp. 4, 9, 15. It contained an additional warning:
Appeals must be filed within the statutorily required ten (10) day time limit from the date the department sent this Determination of Eligibility. Any appeal not filed within the timeframe allowed by Indiana law will be dismissed.Id. (emphasis added). M.H. acknowledges that he received the Determinations the same day they were sent. See Appellant's Br. p. 7.
The Determinations provided that they "may result in an overpayment of benefits." Ex. pp. 3, 8, 14 (formatting altered). According to M.H., he must repay approximately $24,000.
[¶3] Nearly three months later, on August 15, the Appeals Division received M.H.'s appeals of the three Determinations. The appeals did not contain an explanation of the reason for the appeals or request a hearing; instead, they were just a copy of the Determinations with the word "APPEAL" handwritten at the top. See Ex. pp. 5, 10, 16. On September 29, an administrative law judge (ALJ), without holding a hearing, dismissed M.H.'s appeals as untimely:
The party who requested the appeal failed to file a timely appeal to an administrative law judge. The determination of eligibility dated 05/10/2023 became final on 05/22/2023.
Indiana Code 22-4-17-2(f) requires that a claimant or employer ask for a hearing before an administrative law judge within ten (10) days after a determination of eligibility was sent to the claimant or the employer.
Therefore, the appeal is dismissed.Id. at 7, 12, 18. The ALJ's decisions informed M.H. about his appeal rights:
This decision will become final unless the party receiving the adverse Decision appeals to the Review Board within fifteen (15) calendar days after the date this dismissal was sent. The appeal must be in writing and signed by the appealing party. The appeal must contain the case number, the last four digits of the Claimant's social security number, and an explanation of the reason for appeal. If the appealing party has additional information or documents that were not available at the time
of the initial appeal, a request to submit the additional evidence and the documents should be included with the letter of appeal to the Review Board.Id. (emphases added).
[¶4] M.H. appealed the ALJ's decisions that same day. Again, M.H. included only the ALJ's decisions with the word "APPEAL" handwritten at the top and did not include an explanation of the reason for the appeals (such as alleging that good cause existed for filing late), request a hearing, or ask to submit additional evidence. Appellant's App. Vol. II pp. 2, 5, 8; see also 646 Ind. Admin. Code 510-11 (providing that "the review board may hear or procure additional evidence upon its own motion, or upon written application of either party").
[¶5] On October 6, the Review Board, without holding a hearing or accepting additional evidence, adopted and incorporated the ALJ's findings of fact and conclusions of law and affirmed the ALJ's decisions. Id. at 4, 7, 10.
The Review Board filed a motion in this Court asking us to consolidate the three appeals involving M.H. and S.M.S. LLC, which we granted. See No. 23A-EX-2593 (Ind.Ct.App. Dec. 5, 2023). M.H. claims that these three cases plus two cases related to his other employer should have been consolidated below. M.H., however, never asked for them to be consolidated and has therefore waived this issue for review.
Discussion and Decision
[¶7] M.H. appeals the Review Board's decision affirming the ALJ's dismissals of his appeals as untimely. As an initial matter, M.H. asks us for permission to file a supplemental appendix that includes documents related to unemployment benefits he was found to be entitled to from a different employer, P.P., Inc. M.H., however, did not file, or ask to file, these documents below and therefore they weren't considered by the ALJ or Review Board. We cannot allow M.H. to file with us what he failed to file below. See Thomas v. N. Cent. Roofing, 795 N.E.2d 1068, 1071 (Ind.Ct.App. 2003). We therefore deny M.H.'s motion to file a supplemental appendix.
[¶8] Moving to the merits, M.H. does not argue that his appeals to the ALJ were timely. This is likely for good reason, as it is undisputed that M.H. received the Determinations on May 10, 2023, had until May 22 to appeal them, but didn't do so until August 15-nearly three months late. Notably, the record does not contain any reason why the appeals were late. Although M.H. was representing himself at this point and entitled to "more leeway in an administrative context than in a judicial one," Cunningham v. Review Bd. of Ind. Dep't of Workforce Dev., 913 N.E.2d 203, 206 (Ind.Ct.App. 2009), this fact alone doesn't excuse his three-month delay in appealing. The ALJ properly dismissed M.H.'s appeals as untimely.
According to Indiana Code section 22-4-17-3(a), an ALJ must "afford[] the parties a reasonable opportunity for [a] fair hearing." M.H. was given a reasonable opportunity for a hearing before the ALJ here. He just didn't take advantage of it because he filed his appeals late. See Cunningham, 913 N.E.2d at 205 (affirming ALJ's dismissal of appeal without holding a hearing because claimant's appeal was late).
[¶9] Rather than argue that he timely appealed the Determinations, M.H. asserts that, based on principles of fundamental fairness and due process, he "was entitled to a hearing" before the Review Board so it could consider the documents related to his other employer, P.P., Inc. Appellant's Br. p. 11. M.H. claims that had the Review Board held a hearing and considered the documents, it would have found that he was entitled to unemployment benefits from his employer in this case, S.M.S. LLC.
[¶10] But as the Review Board points out on appeal, M.H. did not request a hearing before the Review Board or ask to submit the documents related to his other employer. See Cunningham, 913 N.E.2d at 206 ("Had Cunningham raised this issue and submitted the fax transmission log to the Review Board, it would have considered this additional evidence even though it had not been presented to the ALJ."). Instead, he simply handwrote "APPEAL" without providing any explanation. That is not enough to give the Review Board an opportunity to hold a hearing to address the documents related to his other employer. M.H. has thus waived this issue on appeal. See id. at 205 ("Our Supreme Court has held that a party who fails to raise an issue before an administrative body has waived the issue on appeal."). We therefore affirm the Review Board.
[¶11] Affirmed.
Weissmann, J., and Foley, J., concur.