Kathy K. Brunner v. Review Board of the Indiana Department of Workforce Development

• Court: Indiana Court of Appeals
• Decided: February 27, 2014
• Docket: 93A02-1307-EX-592
• Status: Unpublished

Opinion

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 Feb 27 2014, 9:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BRIAN W. KAISER GREGORY F. ZOELLER Angola. Indiana Attorney General of Indiana

KRISTIN GARN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KATHY K. BRUNNER, ) ) Appellant, ) ) vs. ) No. 93A02-1307-EX-592 ) REVIEW BOARD OF THE INDIANA ) DEPARTMENT OF WORKFORCE ) DEVELOPMENT, ) ) Appellee. )

APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT Cause No. 13-R-2183

February 27, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Kathy Brunner appeals the denial of her claim for unemployment benefits by the

Review Board of the Indiana Department of Workforce Development (“Review Board”).

We affirm.

Issue

The sole issue is whether the Review Board properly dismissed as untimely

Brunner’s attempted appeal from a decision by an administrative law judge (“ALJ”) to

deny her claim for unemployment benefits.

Facts

Brunner worked as a truck driver for Trojan Horse, Inc. In October 2012, Trojan

Horse informed Brunner that, because of business necessity, she would have to start driving

a new route that required her to be away from home for longer periods of time. Brunner

refused to accept the new route and quit her employment.

Brunner filed a claim for unemployment benefits. Two separate proceedings were

held regarding her claim. In one proceeding, held under case number 13-06183, an ALJ

determined that Brunner had not refused to accept other work without good cause and,

therefore, Brunner was not disqualified from receiving unemployment benefits. This order

was entered on March 18, 2013. Trojan Horse appealed this determination, and the Review

Board scheduled a hearing for May 17, 2013. However, Trojan Horse failed to appear for

this hearing, and the Review Board affirmed the ALJ’s decision.

In the second proceeding, held under case number 12-29595, an ALJ addressed

whether Brunner had voluntarily quit her employment without good cause. On April 30,

2 2013, an ALJ concluded that Brunner had voluntarily quit her employment without good

cause and was not entitled to collect unemployment benefits. On May 31, 2013, Brunner

faxed a letter to the Review Board stating her intention to appeal the April 30, 2013 ruling.

The Review Board dismissed Brunner’s appeal as untimely because it was not filed within

fifteen days of the adverse ruling, resulting in affirmance of the ALJ’s ruling. Brunner now

appeals the dismissal of her appeal in case number 12-29595.

Analysis

On appeal, Brunner essentially argues that the Review Board should have

consolidated the proceedings in case numbers 12-29595 and 13-06183 and that the failure

to do so caused confusion to Brunner, given the opposite rulings in the two cases. Brunner

argues that this alleged confusion should excuse her failure to timely appeal the ruling in

case number 12-29595. As noted by the Review Board, Brunner fails to cite a single

authority in her entire brief in support of any of her arguments. Such failure means that

the brief lacks cogency and results in waiver of Brunner’s arguments. See A.J. v.

Logansport State Hosp., 956 N.E.2d 96, 109 (Ind. Ct. App. 2011) (citing Ind. Appellate

Rule 46(A)(8)(a)).

Waiver notwithstanding, there is no basis for reversing the Review Board’s

dismissal of Brunner’s appeal. Where the facts are undisputed, dismissal of an appeal by

the Review Board for untimeliness is a question of law that we review de novo. See

Quakenbush v. Indiana Dep’t of Workforce Dev., 891 N.E.2d 1051, 1054 (Ind. Ct. App.

2008). Indiana Code Section 22-4-17-3(b) plainly provides that if a party does not file an

appeal from an ALJ’s decision to the Review Board within fifteen days after notice of the

3 decision is sent, the ALJ’s decision becomes final.1 Ordinarily, failure to comply with this

statute mandates dismissal of an appeal to the Review Board. See id. at 153. In

Quakenbush, we excused strict compliance with the statute where the claimant had

attempted to file an appeal from the ALJ’s decision within the 15-day time limit, but had

mistakenly sent the appeal to the wrong office within the Department of Workforce

Development. Id. at 1054-55. By contrast, we have held that a claimant’s inability to read

a notice of the ALJ’s decision due to lack of education did not excuse failure to comply

with the 15-day deadline, because the claimant “had an affirmative duty to act in some

manner to inform herself of [the notice’s] contents.” Neal v. Review Bd. of Indiana

Employment Sec. Div., 153 Ind. App. 630, 635, 288 N.E.2d 561, 563-64 (1972).

The present case is more like Neal than Quakenbush. Unlike in Quakenbush,

Brunner made no attempt to appeal the ALJ’s order within fifteen days; her earliest attempt

to appeal occurred thirty-one days after the decision.2 Brunner argues this delay should be

excused because the rules and regulations governing unemployment insurance proceedings

are complex and confusing to a layperson, especially in the present case, where there were

two separate pending cases and Brunner had been successful in case number 13-06183

before the ALJ issued the decision in 12-29595 to deny unemployment benefits. If Brunner

was confused, however, it was incumbent upon her to seek advice and inform herself of

1 If notice of the ALJ’s decision is mailed to a party, it extends the appeal filing deadline by three days. Ind. Code § 22-4-17-14(c). 2 Brunner makes no argument that notice of this decision was delayed.

4 what needed to be done to pursue an appeal of the denial of her unemployment benefits

claim, as was the case in Neal.

We also note that case number 13-06183 addressed a distinct legal and factual issue

from case number 12-29595, and there is no authority for the proposition that the

Department of Workforce Development was required to consolidate the cases. In case

number 13-06183, the ALJ ruled that Brunner had not failed to accept other available work

without good cause, pursuant to Indiana Code Section 22-4-15-2. In case number 12-

29595, the ALJ ruled that Brunner had voluntarily quit her employment with Trojan Horse

without good cause, pursuant to Indiana Code Section 22-4-15-1. The key difference

between the two statutes is that Section 22-4-15-1 governs the preliminary question of

whether an individual who has voluntarily quit a job is entitled to any unemployment

benefits, while Section 22-4-15-2 governs whether an already-unemployed person is

entitled to continue collecting unemployment benefits if he or she has refused to accept

new employment. See Martin v. Review Bd. of Indiana Employment Sec. Div., 421 N.E.2d

653, 657 (Ind. Ct. App. 1981). Also, the “good cause” standard under the two statutes is

different, with the standard under Section 22-4-15-2 being less strict, i.e. more lenient to

claimants, than under Section 22-4-15-1. Id.

An argument could be made that it would have been preferable to finally resolve

case number 12-29595, concerning whether Brunner had voluntarily left her employment

without good cause, before turning to the issue of whether she had refused to accept new

employment without good cause under case number 13-06183. However, there was no

legal or factual inconsistency in the different outcomes of the two proceedings. There also

5 was no requirement that the two proceedings be consolidated. The fact that two

proceedings were conducted has no effect on the fact that Brunner failed to timely appeal

the adverse ruling against her in case number 12-29595.

Conclusion

Brunner has waived her arguments on appeal. Waiver notwithstanding, the Review

Board properly dismissed Brunner’s attempted appeal under case number 12-29595. As

such, the ALJ’s ruling is affirmed that Brunner voluntarily left employment without good

cause and, therefore, is not entitled to unemployment benefits.

Affirmed.

ROBB, J., and BROWN, J., concur.