Laura L. Mosier v. Review Board of the Indiana Department of Workforce Development and Department of Health ( 2012 )

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
FILED
May 29 2012, 9:23 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
BARRY T. BARNES GREGORY F. ZOELLER
Feiwell & Hannoy, P.C. Attorney General of Indiana
Indianapolis, Indiana
STEPHANIE L. ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LAURA L. MOSIER, )
)
Appellant-Petitioner, )
)
vs. ) No. 93A02-1112-EX-1092
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and DEPARTMENT OF )
HEALTH,
)
Appellees-Respondents. )
APPEAL FROM THE DWD REVIEW BOARD
Cause No. 11-R-4914
May 29, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Laura L. Mosier appeals the decision of the Review Board of the Indiana
Department of Workforce Development (Review Board) dismissing her appeal as
untimely. Finding no error, we affirm the Review Board’s dismissal.
FACTS
Mosier was discharged from her employment with the Indiana State Department
of Health on November 22, 2010. The following day, she filed a complaint with the State
Employees Appeals Commission (the SEAC). She also filed a claim for unemployment
benefits with the Department of Workforce Development (the Department). On
December 6, 2010, a claims deputy from the Department concluded that Mosier was
discharged for just cause and was therefore not eligible for unemployment benefits. The
Department sent Mosier a “Determination of Eligibility” (DOE) that set forth the
deputy’s decision. The DOE clearly stated that the determination would become final if
not appealed within the thirteen-day statutory time limit. Following a prehearing
conference with an ALJ from the SEAC, Mosier and the Department of Health began
settlement negotiations. They reached an agreement on April 12, 2011.
On June 2, 2011, Mosier appealed the Department’s December 6, 2010,
determination that she was discharged for just cause. On September 21, 2011, an ALJ
dismissed the appeal because it was filed six months late. Mosier appealed this dismissal
to the Review Board, which affirmed the decision of the ALJ. Mosier now appeals the
Review Board’s decision.
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DISCUSSION AND DECISION
On judicial review of an unemployment compensation proceeding, we determine
whether the decision of the Review Board is reasonable in light of its findings.
Syzmanski v. Rev. Bd. of the Ind. Dep’t of Workforce Dev., 656 N.E.2d 290, 292 (Ind.
Ct. App. 1995). Because we are bound by the Review Board’s resolution of all factual
matters, we neither reweigh the evidence nor reassess the credibility of witnesses. Id.
Rather, we consider only the evidence most favorable to the Review Board’s decision and
the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of
probative value to support the Review Board’s decision we will not set it aside. Id. We
are not bound by an agency’s interpretation of the law, but rather, determine whether the
agency correctly interpreted and applied the law. Id.
When a statute contains a requirement that an appeal be filed within a certain time,
noncompliance with that requirement results in dismissal of the appeal. Id. Indiana Code
section 22-4-17-2 provides that a party has ten days after the mailing date of the
Department’s determination to request a hearing before an ALJ. Indiana Code section
22-4-17-14 further provides that if a notice is served through the United States mail, three
days are added to a period that commences upon service of that notice.
Here, the deputy’s determination was mailed on December 6, 2010. Mosier’s
appeal was therefore due on or before December 19. However, the appeal was not filed
until June 2, 2011. Mosier’s noncompliance with the statute results in the dismissal of
her appeal.
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To the extent that Mosier argues that her appeal with the SEAC should have tolled
the deadline of her appeal with the Department, she is mistaken. Her settlement
agreement with the Department of Health was simply not relevant to the timeliness of her
appeal to the Department. See Cunningham v. Review Bd. of Ind. Dep’t of Workforce
Dev. 913 N.E.2d 203, 207 (Ind. Ct. App. 2009) (stating that Cunningham’s agreement
with her employer was not relevant to the timeliness of appeal to the Department).
Therefore, based upon the relevant evidence before it, the Review Board did not err by
affirming the ALJ’s dismissal of Mosier’s appeal as untimely. Accordingly, we affirm
the decision of the Review Board. See id.
The decision of the Review Board is affirmed.
KIRSCH, J., and BROWN, J., concur.
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