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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.

ATTORNEY FOR APPELLANT: WILLIAM L. WILSON Anderson Agostino & Keller PC South Bend, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
NICOLE NELSON, ) ) Appellant-Defendant, ) ) vs. ) ) REVIEW BOARD OF THE INDIANA ) DEPARTMENT OF WORKFORCE ) DEVELOPMENT and MADISON CENTER, INC., ) ) Appellees-Plaintiffs. )

Dec 22 2011, 9:10 am

CLERK

No. 93A02-1105-EX-431

APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT The Honorable Steven F. Bier, Chairperson Cause No. 11-R-1935

December 22, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Nicole Nelson (Nelson) appeals the dismissal of her appeal to the Review Board of the Indiana Department of Workforce Development (the Review Board) on grounds that she did not initiate the appeal in a timely fashion. Nelson presents the following issue for our review: Did the Review Board err in concluding that Nelson's appeal of the unemployment benefits repayment order was not timely filed? We affirm. The underlying facts as found by the administrative law judge (ALJ) are as follows: The claimant worked for the employer from August 22, 2007 to March 15, 2009. The claimant was a full-time mental health technician. The claimant's duties were to monitor residents on units and supervise kids. On March 15, 2009 the claimant asked her supervisor ... for a break. The claimant was asked to wait since there was another coworker on break. At 8:55 p.m. the claimant cleaned out her workspace and left work. On 03/25/2009 the claimant brought in her resignation letter to Human Resources.

Appellant's Appendix at 2. Nelson thereafter filed for unemployment insurance benefits and, on April 22, 2009, a claims deputy determined Nelson was eligible to receive benefits. On May 4, 2009, the employer appealed the deputy's decision and a telephonic hearing was conducted on October 5, 2009 before an ALJ. The employer participated in the hearing but Nelson did not. The ALJ reversed the deputy's decision, issuing the following relevant conclusions of law: An individual who voluntarily leaves employment without good cause in connection with the employment is ineligible to receive unemployment insurance benefits. ... According to the Indiana Court of Appeals in Best Chairs Inc. v. Review Bd. of Indiana Dep't of Workforce Dev., 895 N.E.2d 727, 730 (Ind. Ct. App. 2008): The employee has the burden of establishing that the voluntary
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termination of employment was for good cause, meaning that the employee must show that: (1) the reasons for leaving employment were such as to impel a reasonably prudent person to terminate employment under the same or similar circumstances; and (2) the reasons are objectively related to the employment. This second component requires that the employee show her reasons for terminating employment are job-related and objective in nature, excluding reasons which are personal and subjective. The Indiana Court of Appeals indicated in Moore v. Review Bd. of Employment Sec. Div., 461 N.E.2d 737, 739 (Ind. Ct. App. 1984), that where the party with the burden of proof fails to appear or present any evidence, then that party cannot sustain its burden of proof. The evidence shows that this claimant voluntarily left employment with this employer, making the claimant the party with the burden of proof. The claimant did not appear at the hearing to present evidence, and as a result there is no substantial evidence of record from the party with the burden of proof that shows that the separation was for good cause in connection with the work. Appellant's Appendix at 1-2. The ALJ further determined that Nelson was disqualified from receiving unemployment benefits "[e]ffective the week ending April 18, 2009." Id. at 2. On October 22, 2009, notice was mailed to Nelson that the ALJ's decision would become final unless she appealed to the Review Board "within eighteen (18) calendar days after the mailing date of [the ALJ's decision]" Id. at 1. On March 31, 2011, the IDWD sent Nelson a "Billing Notice for Overpaid Unemployment Compensation" notifying Nelson that she must reimburse the IDWD $6402.00 for overpayment of unemployment benefits. On April 15, 2011, Nelson filed an appeal of the October 5, 2009 decision of the ALJ that Nelson was not entitled to benefits. In the cover letter accompanying her appeal, Nelson claimed she had "filed [her] appeal on October 26, 2009", but had heard nothing about it since that time. Id. at 8. On April 19, 2011, the Review Board dismissed Nelson's appeal
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upon the ground that it was not timely filed. Nelson initiated the instant appeal on May 11, 2011 challenging the Review Board's dismissal. When reviewing a worker's compensation decision, we are bound by the Review Board's factual determinations, which may not be disturbed unless the evidence is undisputed and leads inescapably to a contrary conclusion. Indiana Spine Group, PC v. Pilot Travel Ctrs., LLC, 93S02-1102-EX-90, 2011 WL 5593656 (Ind. Nov. 17, 2011). We will examine the record "only for any substantial evidence and reasonable inferences that can be drawn therefrom to support the [Review] Board's findings and conclusion." Id., slip op. at 2. To the extent the issue involves a conclusion of law based upon undisputed facts, however, we conduct a de novo review. Indiana Spine Group, PC v. Pilot Travel Centers, LLC, 93S021102-EX-90, 2011 WL 5593656. Nelson frames the issue in this case as follows: "The Review Board erred when it dismissed Nelson's appeal of the unemployment benefits repayment order as untimely when the Board had not ruled upon Nelson's two-year-old appeal of the determination that Nelson was not eligible for unemployment benefits." Appellant's Brief at 1. We conclude that with respect to the dispositive issue in this case, Nelson's formulation of the issue begs the question. The dispositive issue is whether Nelson initiated a valid appeal of the ALJ's decision in the first place. The pertinent evidence on that question, as set out above, shows that the ALJ rendered a decision after an October 5, 2009 telephonic hearing at which Nelson did not appear. Of course, this meant that Nelson did not present evidence on the question presented by her employer's appeal of the deputy's determination, i.e., whether she voluntarily left her employment for good cause. Because Nelson bore the burden of proof on
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this issue, see Y.G. v. Review Bd. of Ind. Dep't of Workforce Dev., 936 N.E.2d 312 (Ind. Ct. App. 2010), her failure to present evidence resulted in a decision against her. See Moore v. Review Bd. of Emp't Sec. Div., 461 N.E.2d 737. Nelson was notified of the adverse ruling and informed that she had eighteen calendar days to appeal the ruling, or until November 9, 2009. According to the Review Board's records, Nelson was not heard from again until April 15, 2011, shortly after she was notified by the IDWD that she owed $6402.00 in overpaid unemployment compensation. At that point, Nelson filed her notice of appeal, challenging the ALJ's October 19, 2009 ruling. In a letter accompanying the appeal, Nelson briefly discussed the merits of the ALJ's decision, and also offered an explanation for why she had not participated in the October 5, 2009 telephonic hearing. After the Review Board reviewed the file and dismissed her appeal as untimely, Nelson appealed that ruling to this court. Nelson filed her appendix on September 14, 2011. It included a copy of a U.S. Postal Service certified mail receipt and delivery confirmation (the Receipt) reflecting that Nelson mailed something to the IDWD on October 27, 2009 and it was delivered two days lated, on October 29. The Receipt was not in the materials submitted to the Review Board. Contemporaneous with the filing of her appendix, however, Nelson also filed a "Motion to Modify Record", asking this court to permit her to append the Receipt to the record in this case. Nelson contended it "may be the only evidence that the Review Board received Nelson's appeal, and therefore it is necessary to this Court's consideration of her appeal." Motion to Modify Record at 1. We granted the motion on September 27, 2011. The limitation period for appealing a decision to the Review Board is statutorily set.
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Ind. Code Ann.

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