J.B. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 8, 2016
• Docket: 93A02-1603-EX-484
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 08 2016, 10:13 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Adam J. Sedia Gregory F. Zoeller Rubino, Ruman, Crosmer & Polen Attorney General of Indiana Dyer, Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.B., September 8, 2016 Appellant, Court of Appeals Case No. 93A02-1603-EX-484 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce Case No. Development, 16-R-69 Appellees.

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 93A02-1603-EX-484 | September 8, 2016 Page 1 of 5 [1] J.B. appeals the decision by the Review Board of the Indiana Department of

Workforce Development (Review Board) to deny further unemployment

insurance benefits. We affirm.

Facts and Procedural History [2] J.B. worked for a law firm until her termination on September 30, 2014. She

filed for unemployment benefits and was approved. The Indiana Department

of Workforce Development (the Department) determined her benefit year

began on September 28, 2014, and ended on September 26, 2015.

[3] J.B. received three installment payments from the law firm in October 2014,

during her first year of unemployment benefits. These payments were to

compensate J.B. for “sick days and vacation days [J.B.] had left for the year.”

(Tr. at 10.) J.B. was unable to secure other employment during her first benefit

year.

[4] J.B. filed again for unemployment benefits on October 2, 2015. The

Department determined the second benefit year began on September 27, 2015,

and ended on September 24, 2016. The Department first awarded J.B.

unemployment benefits but subsequently reversed that ruling. The Department

determined the money the law firm paid J.B. in October 2014 was severance

and not wages from work performed during her first benefit year, which began

September 28, 2014. On review, the Administrative Law Judge (ALJ)

determined J.B.

Court of Appeals of Indiana | Memorandum Decision 93A02-1603-EX-484 | September 8, 2016 Page 2 of 5 ha[d] not performed insured work and earned wages in employment since the beginning of the previous benefit year in each of eight weeks; the claimant ha[d] not worked since her separation on September 30, 2014. Accordingly, . . . [J.B.] failed to meet the requirements of Indiana Code 22-4-14-5 to establish another unemployment claim.

(App. at 3.) The Review Board affirmed the findings of the ALJ.

Discussion and Decision [5] J.B. asserts the payments in October 2014 for her accrued vacation and sick

days, were wages and should qualify her for continued unemployment

compensation during a second benefit year from September 27, 2015, to

September 24, 2016.

[6] On appeal from a decision of the Review Board, we “utilize a two-part inquiry

into the sufficiency of the facts sustaining the decision and the sufficiency of the

evidence sustaining the facts.” Whiteside v. Ind. Dep’t of Workforce Dev., 873

N.E.2d 673, 674 (Ind. Ct. App. 2007).

In doing so, we consider determinations of basic underlying facts, conclusions or inferences from those facts, and conclusions of law. The Review Board’s findings of fact are subject to a substantial evidence standard of review. “Any decision of the review board shall be conclusive and binding as to all questions of fact.” I.C. § 22-4-17-12(a). We do not reweigh the evidence or assess the credibility of witnesses. Regarding the Board’s conclusions of law, we assess whether the Board correctly interpreted and applied the law.

Court of Appeals of Indiana | Memorandum Decision 93A02-1603-EX-484 | September 8, 2016 Page 3 of 5 Id. at 675 (some citations omitted). We will reverse “only if there is no

substantial evidence to support the findings.” KBI, Inc. v. Review Bd. of the Ind.

Dep’t of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995).

[7] The denial of unemployment compensation was based on the premise that J.B.

did not fulfill the criteria in Ind. Code § 22-4-14-5(b), which states:

As a further condition precedent to the payment of benefits to an individual with respect to a benefit year established on and after July 1, 1995, an insured worker may not receive benefits in a benefit year unless after the beginning of the immediately preceding benefit year during which the individual received benefits, the individual:

(1) performed insured work;

(2) earned remuneration in employment in at least each of eight (8) weeks; and

(3) earned remuneration equal to or exceeding the product of the individual’s weekly benefit amount multiplied by eight (8).

[8] J.B. argues the sick and vacation pay she received in October 2014 was “insured

work” and should qualify her for unemployment compensation. Vacation pay

“is deferred compensation in lieu of wages[.]” Naugle v. Beech Grove City Sch.,

864 N.E.2d 1058, 1067 (Ind. 2007). Sick leave pay, if “earned over time,” may

also be considered wages. Schwartz v. Gary Cmty. Sch. Corp., 762 N.E.2d 192,

198 (Ind. Ct. App. 2002), trans. denied. Such payments are “additional wages,

Court of Appeals of Indiana | Memorandum Decision 93A02-1603-EX-484 | September 8, 2016 Page 4 of 5 earned weekly, where only the time of payment is deferred[.]” Die & Mold, Inc.

v. W., 448 N.E.2d 44, 48 (Ind. Ct. App. 1983). Thus, the payments J.B.

received in October 2014 were deferred wages for work performed earlier.

[9] Because J.B. did not work after September 30, 2014, there was no “insured

work” performed after the beginning of the benefit year as required by Ind.

Code § 22-4-14-5. 1 See Schwartz, 762 N.E.2d at 198 (“timing is an issue as to

accrual of the benefit, not to the payment thereof”).

Conclusion [10] J.B. did not perform insured work during her first benefit year, which is

required to qualify for subsequent unemployment compensation benefits.

Accordingly, we affirm the Review Board’s ruling.

[11] Affirmed.

Kirsch, J., and Crone, J., concur.

1 As J.B. did not “perform insured work” as required in Ind. Code § 22-4-14-5(b)(1), we need not address whether the October 2014 payments satisfy the other two criteria in Ind. Code § 22-4-14-5(b).

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