Miller v. Kentucky Unemployment Insurance Commission

MAZE, JUDGE,

CONCURRING:

I fully concur with the reasoning and the result of the majority opinion, but I write separately to add an additional point. Based on 787 KAR 1:110 Section 4(5), Miller argues that Cumberland Brews failed to file a timely motion to reopen the referee hearing, and consequently the Commission did not have the authority to order a new hearing. At first blush, the argument seems logical: if a party fails to attend a hearing, then the regulation allows seven days for that party to file a motion to reopen. If a party fails to file a motion within the required time, that party should not be allowed a “second bite at the apple,” and obtain a new hearing during the course of the appeal to the Commission.

However, this interpretation, while reasonable, is not consistent with the statutory and regulatory scheme for unemployment insurance actions. First, the regulation at issue sets out “General Rules for Referee and Commission Appeals.” 787 KAR 110 Section 4. This section sets out procedural rules for the referee and the Commission, including provisions for the issuance of subpoenas; maintenance of the appeal record; furnishing of information from the records of the Division of Unemployment Insurance; conduct of hearings; and creation, retention and destruction of recordings. Among these provisions, subsection (5) establishes a procedural mechanism for reopening hearings when a party has failed to appear. This subsection merely allows the referee (or the Commission) to reopen hearings under the specified circumstances. But when viewed in context with the accompanying provisions, this subsection does not purport to limit the scope of issues which may be raised on appeal.

Rather, appeals from the referee to the Commission are governed separately. A party to a referee determination must file an appeal to the Commission within fifteen days or the referee’s determination will become final. KRS 841.420(4). But, if an appeal is filed within that time, the Commission has broad authority to “affirm, modify, or set aside any decision of a referee on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence.... ” KRS 341.480(1). As the majority points out, 787 KAR 1:110 Section 2(2)(c) echoes the statutory language and specifically authorizes the Commission to remand the matter to the referee for the taking of additional evidence.

In this case, Cumberland Brews did not file a motion with the referee to reopen the hearing based on its alleged lack of notice. Rather, Cumberland Brews filed a timely appeal to the Commission from the referee’s decision. The Commission did not directly address Cumberland Brews’ claim that it failed to receive notice of the referee hearing, but nevertheless chose to remand the matter for a new hearing. That decision was within the Commission’s statutory and regulatory authority. Thus, this Court can only set aside that decision if it is arbitrary or characterized by abuse of discretion. Burch v. Taylor Drug Store, 965 S.W.2d 830, 834 (Ky.App.1998), citing American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky.1964). Although I do not necessarily endorse the Commission’s decision to order remand under the circumstances presented in this case, I must agree with the majority that the Commission did not abuse its discretion in doing so. Therefore, I would likewise affirm the circuit court’s order.