Debbie Mitchell v. Review Board of the Indiana Department of Workforce Development, and Midwest Mobile Care, Inc. , 2014 Ind. App. LEXIS 133 ( 2014 )

FOR PUBLICATION
ATTORNEYS OR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW DUTKANYCH, III GREGORY F. ZOELLER
LAUREN E. BERGER Attorney General of Indiana
Biesecker Dutkanych & Macer, LLC
Evansville, Indiana FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
Mar 31 2014, 9:20 am
IN THE
COURT OF APPEALS OF INDIANA
DEBBIE MITCHELL, )
)
Appellant, )
)
vs. ) No. 93A02-1310-EX-856
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, and MIDWEST )
MOBILE CARE, INC., )
)
Appellee. )
APPEAL FROM THE REVIEW BOARD OF THE
DEPARTMENT OF WORKFORCE DEVELOPMENT
Cause No. 13-R-02945
March 31, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Debbie Mitchell appeals the decision of the Review Board of the Indiana Department
of Workforce Development (“Review Board”) that she was not entitled to additional
unemployment insurance benefits. Mitchell raises one issue for our review: whether the
Review Board erred in affirming the findings of the Administrative Law Judge (“ALJ”) that
she was not partially unemployed. Concluding the Review Board did not err in applying the
unambiguous statute defining partial unemployment, we affirm.
Facts and Procedural History
Until May 25, 2011, Mitchell was a full-time employee for Vitreo Retinal Associates
working approximately thirty-three hours per week. During her employment at Retinal
Associates, she was also a part-time employee of Midwest Mobile Care, Inc., working
approximately four to eight hours one day per week. Midwest Mobile considered full-time
employment to be at least thirty-two hours per week. Her employment with Midwest Mobile
was “on call or as needed [and] she is not guaranteed work on a weekly basis.” Appellant’s
Appendix at 16.
On May 25, 2011, Mitchell lost her employment with Retinal Associates and was
qualified to receive unemployment benefits due to the loss of that employment. She
continued to work the same schedule for Midwest Mobile while she sought full-time
employment. She reported her income from Midwest Mobile to the Department of Workforce
Development (“DWD”), which deducted those earnings from her unemployment benefits.
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On May 20, 2013, a DWD claims deputy issued a determination of eligibility with
regard to her employment with Midwest Mobile determining that Mitchell was “working
[her] normal customary hours [and] is not unemployed.” Appellant’s App. at 12. Her
benefits were suspended as of the week ending November 26, 2011, the twenty-sixth week
after her employment with Retinal Associates ended. Mitchell appealed the decision to an
ALJ. Following a hearing, the ALJ affirmed the deputy’s decision:
FINDINGS OF FACT:
***
The week ending November 26, 2011, Claimant worked her twenty-sixth week
with only the part time employment. Therefore, her part time employer
became her regular employer and the part time hours became her regular and
customary hours for the position.
Therefore, Claimant was not working less than her normal and customary
hours for this employer as it hired her as a part time employee and Claimant
continued to be a part time employee throughout the employment.
CONCLUSIONS OF LAW: Ind. Code § 22-4-3-2 provides: An individual is
‘partially unemployed’ when, because of lack of available work, he is working
less than his normal customary full-time hours for his regular employer and his
remuneration is less than his weekly benefit amount in any calendar week[.]
646 Ind. Admin. Code 5-8-1(a) provides that claimants are ineligible for
benefits unless they can show that they are “working less than their normal
customarily scheduled hours for their regular employer.” 646 Ind. Admin.
Code 5-8-1(b) provides:
“[N]ormal customarily scheduled hours” means the hours to which the
claimant has agreed to work. Any reduction in hours that regularly
occurs as a matter of practice, policy, or procedure of which the
claimant was aware and to which the claimant has agreed will not be
considered partial or part-total unemployment.
The [ALJ] concludes Claimant was not totally unemployed because Claimant
was working and receiving some remuneration.
Additionally, pursuant to 646 I.A.C. 5-8-1, Claimant is not partially
unemployed because Claimant was not working less than the normal
customarily scheduled hours for the position with her regular employer, which
was now Midwest Mobile Care since it was her only employer for twenty-six
weeks. Therefore, the [ALJ] concludes Claimant was not totally or partially
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unemployed within the meaning of Ind. Code § 22-4-3 and Claimant is
ineligible for benefits as per 646 I.A.C. 5-8-1(a).
DECISION: The initial determination of the deputy dated May 20, 2013, is
affirmed. Claimant is not unemployed. Claimant’s benefits are suspended
effective the week ending November 26, 2011.
Id. at 25-26. Mitchell appealed the ALJ’s decision to the full Review Board, which adopted
and incorporated by reference the ALJ’s findings of fact and conclusions and affirmed the
ALJ’s decision suspending Mitchell’s unemployment benefits. Mitchell now appeals to this
court.
Discussion and Decision
I. Standard of Review
“Any decision of the [R]eview [B]oard shall be conclusive and binding as to all
questions of fact. Either party to the dispute or the commissioner may . . . appeal the decision
to the court of appeals of Indiana for errors of law . . . .” Ind. Code § 22-4-17-12(a). The
facts in this case are undisputed; the parties disagree about the application of Indiana Code
section 22-4-3-2 to those facts. This appeal therefore involves only interpretation of the
statute, a question of law, and we review conclusions of law made by the Review Board
under a de novo standard. Indiana State Univ. v. LaFief, 888 N.E.2d 184, 186 (Ind. 2008).
The interpretation of a statute by an administrative agency charged with the duty of
enforcing the statute is entitled to great weight, unless the agency’s interpretation would be
unreasonable or inconsistent with the statute itself. Chrysler Grp., LLC v. Review Bd. of
Indiana Dep’t of Workforce Dev., 960 N.E.2d 118, 123 (Ind. 2012). This same rule of
deference applies to agency interpretation of administrative regulations that it has drafted and
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is charged with enforcing. State Bd. of Tax Comm’rs v. Two Market Square Assocs. Ltd.
P’ship, 679 N.E.2d 882, 886 (Ind. 1997). We “regularly construe provisions of the
[Unemployment Compensation] Act liberally to favor the unemployed and promote the Act’s
humanitarian purpose.” Chrysler Grp. LLC, 960 N.E.2d at 126; see also Ind. Code § 22-4-1-
1 (declaring public policy behind Act to be protecting against economic insecurity due to
unemployment).
II. Eligibility for Benefits
The purpose of the Unemployment Compensation Act is to provide unemployment
benefits to individuals who are “unemployed through no fault of their own.” Chrysler Grp.
LLC., 960 N.E.2d at 123 (quoting Ind. Code § 22-4-1-1). One of the basic requirements of
eligibility to collect unemployment benefits is that the claimant be totally, partially, or part-
totally unemployed. Ind. Code § 22-4-2-22 (defining a “valid claim” for unemployment
benefits as one filed by a person who has qualifying wage credits and is totally, partially, or
part-totally unemployed). An individual is totally unemployed “in any week with respect to
which no remuneration was payable to him for personal services.” Ind. Code § 22-4-3-1. An
individual is partially unemployed “when, because of lack of available work, he is working
less than his normal customary full-time hours for his regular employer and his remuneration
is less than his weekly benefit amount in any calendar week . . . .” Ind. Code § 22-4-3-2.1 In
affirming the ALJ’s decision, the Review Board determined that Mitchell was neither totally
unemployed nor partially unemployed as of November 26, 2011. Mitchell concedes she is
1
Though the term is used a few times throughout the Unemployment Compensation Act, “part-totally
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not totally unemployed, but contends she is partially unemployed due to her continued part-
time employment with Midwest Mobile and the Review Board erred in determining she is not
entitled to receive unemployment benefits past that date.
It is important to note at the outset that Mitchell received twenty-six weeks of
unemployment benefits as a result of separation from her full-time employment with Retinal
Associates. The basic benefit period is twenty-six weeks. See Ind. Code § 22-4-12-4(a); see
also Unemployment Insurance Claimant Handbook (Rev. 12-13-2013), at 12, available at
http://www.in.gov/dwd/files/Claimant_Handbook.pdf (“You may draw regular
unemployment insurance benefits for up to 26 weeks, or until your maximum benefit amount
(MBA) has been reached . . . .”) (emphasis omitted). The claim now being appealed is for
unemployment benefits payable as a result of Mitchell’s employment by Midwest Mobile.
See App. at 12 (Determination of Eligibility letter showing employer information for
Midwest Mobile). Her previous employment with Retinal Associates is no longer a
consideration.
Since Mitchell was first hired by Midwest Mobile, her employment has been part-
time, on call and as needed, for approximately four to eight hours per week. As of the time
of the eligibility determination, that remained the case. Again, Mitchell concedes that she
does not meet the definition of “totally unemployed” because she receives remuneration from
Midwest Mobile. Mitchell acknowledges that the “plain language of the statute [defining
partial unemployment] reads that a person is partially unemployed when she is working less
unemployed” is not defined.
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than her customary full time hours for an employer.” Reply Brief at 2. She also
acknowledges that she never established customary full-time hours with Midwest Mobile.
Midwest Mobile considered full-time employment to be thirty-two hours a week, and she
never worked more than eight hours in a week. She argues that because she never
established full-time hours with Midwest Mobile, she is therefore partially unemployed.2
However, under the plain language of the statute, because she never established full-time
hours with Midwest Mobile, she cannot be partially unemployed. One must first have
established customary full-time hours that are then reduced in order to be considered partially
unemployed.
Although not cited by the Review Board or the parties, we also note that even if
Mitchell did meet the section 22-4-3-2 definition of “partially unemployed,” Indiana Code
section 22-4-3-3 provides:
An individual is not totally unemployed, part-totally unemployed, or partially
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.
Mitchell’s employment with Midwest Mobile is regularly and customarily on an on call or as
needed basis, and in those weeks in which she receives hours and wages, she is not partially
unemployed and therefore not entitled to benefits pursuant to this section.
2
She also argues that because she never established full-time hours, Midwest Mobile cannot be her
“regular employer.” Department of Workforce Development regulations define “regular employer” as “an
employing unit for which the claimant has performed services in the last twenty-six (26) weeks . . . .” 646
I.A.C. 5-8-1(c). Status as a “regular employer” does not depend on the hours worked.
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Mitchell argues that the Review Board’s decision punishes her for maintaining part-
time employment during the time she was receiving benefits due to her separation from
employment with Retinal Associates. However, after her benefit period ended from her
previous employment with Retinal Associates, she would be in the same position whether or
not she had maintained part-time employment during that time. If she had not maintained
part-time employment, she would meet the definition of totally unemployed but would have
exhausted her benefits. Having maintained part-time employment, she is neither totally nor
partially unemployed and is not entitled to additional benefits. Mitchell has not been
disqualified from receiving benefits due to her part-time work, she is just not entitled to
additional benefits because of it. She has been placed in no worse position than a less
industrious person. We do note, however, that we do not condone the nearly eighteen month
delay in making the eligibility determination with respect to her employment with Midwest
Mobile after her benefit period with regard to Retinal Associates ended, as this has
presumably resulted in a significant overpayment which she is now obligated to repay.
Conclusion
The Review Board properly applied the plain language of the statute defining partial
unemployment, and its determination that Mitchell is no longer eligible for benefits is
affirmed.
Affirmed.
BARNES, J., and BROWN, J., concur.
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