Tammy Price v. Review Board of the Indiana Department of Workforce Development and WC Fern Exposition Services , 2013 Ind. App. LEXIS 656 ( 2013 )

FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE
REVIEW BOARD OF THE INDIANA
TAMMY PRICE DEPARTMENT OF WORKFORCE
Indianapolis, Indiana DEVELOPMENT:
GREGORY F. ZOELLER
Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TAMMY PRICE, )
)
Appellant, )
)
vs. ) No. 93A02-1304-EX-369
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and WC FERN )
Nov 13 2013, 7:16 am
EXPOSITION SERVICES, )
)
Appellees. )
APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT
OF WORKFORCE DEVELOPMENT
Cause Nos. 13-R-830, 13-R-831
November 13, 2013
OPINION - FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant Tammy Price has been employed as a part-time employee by George Fern
Exposition & Event Services (“Employer”) since October of 1991. Due to the nature of her
work with Employer, Price would occasionally go through short periods of unemployment.
During these periods of unemployment, Price would apply for unemployment compensation
benefits. In the instant matter, Price appeals from the denial of unemployment compensation
benefits during two alleged periods of unemployment by the Review Board of the Indiana
Department of Workforce Development (“Review Board”). Concluding that Price has failed
to establish that she was unemployed, i.e., that she earned no remuneration because of a lack
of available work, during the periods in question, we affirm.
FACTS AND PROCEDURAL HISTORY
Price has been employed as a part-time employee by Employer since October of 1991.
Through her employment with Employer, Price worked on an as-needed basis in the field of
event services. Due to the nature of her work with Employer, Price would periodically go
through short periods of unemployment. During these periods of unemployment, Price
would apply for unemployment compensation benefits.
At some point during two alleged periods of unemployment, Price filed two separate
claims for unemployment compensation benefits.1 The first claim, filed under Cause Number
13-R-830 (“Cause No. 830”), related to a period that included the week ending November 26,
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Cause No. 830 lists Employer listed as the employer. Cause No. 831 lists United Temps as the
employer. Price explained during the evidentiary hearings that Employer has been her employer at all times
since October of 1991, but that United Temps was listed as her employer in Cause No. 831 because United
Temps handled payroll for Employer. The testimony was similar in both hearings and the exhibits identical,
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2011. The second claim, filed under Cause Number 13-R-831 (“Cause No. 831”), related to
a period that included the week ending July 7, 2012. On November 16, 2012, a claims
deputy of the Indiana Department of Workforce Development determined that Price was not
unemployed as of either the week ending November 26, 2011, or the week ending July 7,
2012, and was therefore ineligible to receive unemployment compensation benefits for either
period. Price appealed these determinations.
On February 6, 2013, an Administrative Law Judge (“ALJ”) conducted two separate
hearings on the matters. On February 8, 2013, the ALJ issued two orders affirming the
determinations of the claims deputy. With respect to Cause No. 830, the ALJ found as
follows:
FINDINGS OF FACT: The claimant has been working her usual customary
hours for this employer since 1991. The claimant is employed by an event
services company as a temporary event worker. The claimant has not been laid
off from work as the claimant is working on an as-needed basis. The claimant
has worked at this job for greater than twenty six weeks as of the week ending
November 26, 2011; this employer is the claimant’s primary employer. The
claimant does not have regular hours. The [ALJ] finds that the claimant is on
an as needed, part-time basis at her regular employer and has been employed in
that manner since 1991. The [ALJ] finds that the claimant is unemployed only
during those weeks in which she earned no remuneration from work because
of a lack of available work. The claimant could not show which weeks during
the period covered by this determination that she had no remuneration because
of a lack of work.
CONCLUSIONS OF LAW: The [ALJ] concludes that the clamant is not
unemployed. The [ALJ] concludes that the claimant worked for this employer
for more than twenty six weeks on a part-time as needed basis and the claimant
was working her usual and customary hours. The [ALJ] concludes that the
claimant is not entitled to benefits as the claimant is not partially unemployed,
part-totally unemployed, or unemployed.…
DECISION: The initial determination of the deputy is affirmed. The
with the exceptions that the employers listed were different.
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claimant’s benefit rights are suspended the week ending November 26, 2011.
The claimant is entitled to benefits only during weeks in which she had no
remuneration payable to her because of lack of available work, if otherwise
eligible.
Cause No. 830 Tr. pp. 42-43. With respect to Cause No. 831, the ALJ found as follows:
FINDINGS OF FACT: The claimant has been working her usual customary
hours for her employer since 1991. The listed employer is a co-employer
providing payroll services. The claimant is employed by an event services
company as a temporary event worker. The claimant has not been laid off
from work as the claimant is working on an as-needed basis. The claimant has
worked at this job for greater than twenty six weeks at the claimant’s primary
employer as of the week ending July 7, 2012. The claimant does not have
regular hours. The [ALJ] finds that the claimant is on an as needed, part-time
basis at her regular employer and has been employed in that manner since
1991. The [ALJ] finds that the claimant is unemployed only during those
weeks in which she earned no remuneration from work because of a lack of
available work. The claimant could not show which weeks during the period
covered by this determination that she had no remuneration because of a lack
of work.
CONCLUSIONS OF LAW: The [ALJ] concludes that the clamant is not
unemployed. The [ALJ] concludes that the claimant worked for this employer
for more than twenty six weeks on a part-time as needed basis and the claimant
was working her usual and customary hours. The [ALJ] concludes that the
claimant is not entitled to benefits as the claimant is not partially unemployed,
part-totally unemployed, or unemployed.…
DECISION: The initial determination of the deputy is affirmed. The
claimant’s benefit rights are suspended the week ending July 7, 2012. The
claimant is entitled to benefits only during weeks in which she had no
remuneration payable to her because of lack of available work, if otherwise
eligible.
Cause No. 831 Tr. pp. 39-40.
On February 25, 2013, Price appealed the determinations of the ALJ to the Review
Board. Price also requested permission to submit additional evidence to the Review Board.
On March 26, 2013, the Review Board affirmed the ALJ’s determinations, finding that Price
was not unemployed during the relevant periods and, as such, was ineligible for
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unemployment compensation benefits. This appeal follows.
DISCUSSION AND DECISION
I. Standard of Review
On judicial review of an unemployment compensation proceeding, we determine
whether the decision of the Review Board is reasonable in light of its findings. Value World
Inc. of Ind. v. Review Bd. of Ind. Unemp’t Dep’t of Workforce Dev., 927 N.E.2d 945, 947
(Ind. Ct. App. 2010). We are bound by the Review Board’s resolution of all factual matters;
thus, we neither reweigh evidence nor reassess witness credibility. Id. at 948. Rather, we
consider only the evidence most favorable to the Review Board’s decision and the reasonable
inferences to be drawn therefrom, and if there is substantial evidence of probative value to
support the Review Board’s conclusion, it will not be set aside. Id. When, however, an
appeal involves a question of law, we are not bound by the agency’s interpretation of law,
and we will reverse a decision if the Review Board incorrectly interprets a statute. Id.II. Review Board’s Alleged Failure to Consider Additional Evidence
In the “Statement of the Issues” section of Price’s brief on appeal, Price contends that
the Review Board abused its discretion when it declined to accept additional evidence.
Appellant’s Br. p. 1. Price, however, does not develop this contention further. Her brief is
devoid of any cogent argument relating to or citation to relevant authority in support of this
contention. As such, Price has waived this claim for appellate review. See Ind. Appellate
Rule 46(A)(8) (requiring that contentions in an appellant’s brief be supported by cogent
reasoning and citations to relevant authority); Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind.
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2006) (providing that a contention is waived when it is supported neither by cogent argument
nor citation to authority); Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005)
(observing that failure to present a cogent argument or citation to authority constitutes waiver
of issue for appellate review), trans. denied.
III. Sufficiency of Evidence to Suspend Benefits
Price also contends that the Review Board’s denial of unemployment compensation
benefits was not supported by sufficient evidence. In denying Price’s claim for
unemployment compensation benefits for the weeks ending November 26, 2011, and July 7,
2012, the Review Board adopted the ALJ’s determination that Price failed to establish that
she was unemployed during these periods. “It is well established in Indiana that in order to
collect [unemployment compensation] benefits … the claimant must be unemployed.” Pope
v. Wabash Valley Human Servs., Inc., 500 N.E.2d 209, 211 (Ind. Ct. App. 1986). Indiana
Code section 22-4-3-3 provides that an individual is not unemployed for any week in which
the individual “(1) is regularly and customarily employed on an on call or as needed basis;
and (2) has: (A) remuneration for personal services payable to the individual; or (B) work
available from the individual’s on-call or as needed employer.”
Price concedes that she has been employed by Employer on an as needed basis since
October of 1991. While Price claims that she “only files [for unemployment benefits] on
weeks she is laid off and has never filed for benefits when she works,” Appellant’s Br. p. 6,
Price presented no evidence before the ALJ that verified the specific periods during which
she did not receive remuneration for personal services or during which there was no work
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available from Employer. Price, therefore, has failed to demonstrate that she received no
remuneration because of a lack of available work during the relevant periods for which she
requested unemployment benefits. Consequently, we conclude that the record supports the
Review Board’s determination that Price was not unemployed during the relevant periods.
Price’s claim to the contrary amounts to an invitation to reweigh the evidence, which we will
not do. See Value World, 927 N.E.2d at 948.
The judgment of the Review Board is affirmed.
BAILEY, J., and MAY, J., concur.
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