erMURTOF APP

IN THE COURT OF APPEALS OF THE STATE OF WASHIN

DIVISION II

BASIL D. YAUGER,

Appellant,

V.

STATE, DEPARTMENT OF

EMPLOYMENT SECURITY,

No. 43156 -4 -II

T TNPT TRT .NT-T - F) OPTNT

WORGEN, J. — Basil D. Yauger appeals the Employment Security Department

commissioner'sdetermination that he did not establish good cause for failing to timely appeal

the denial of unemployment benefits. Yauger contends that the commissioner erred (1) by

failing to consider evidence concerning his post- traumatic stress disorder (PTSD), and (2) by

contacting him "regarding all notices, deadlines, and requirements via U.S. Mail [versus]

e[ -] mail or phone." Br. of Appellant at 5. Yauger also contends that the commissioner'sfailure

to consider his PTSD evidence violated the Americans with Disabilities Act (ADA). We affirm.

FACTS

On March 15, 2010, Yauger quit his job at Wachovia Dealer Services. On June 5, 2010,

the Department issued a determination notice denying Yauger unemployment benefits for

quitting his job without good cause. The first page of the determination notice stated Yauger had

until July 6, 2010 to appeal the Department'sdecision to deny unemployment benefits. The

determination notice further stated:

YOUR RIGHT TO APPEAL:

If you disagree with this decision, you have the right to appeal. An appeal is a

written statement that you disagree with this decision. Your appeal must be

received or postmarked. 07 / by.06/2010. An appeal is a request for a hearing with

an Administrative Law Judge (ALJ) from the Office of Administrative Hearings

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OAH). If you miss the deadline to appeal, tell us why the appeal is late. The

ALJ will decide if you have "good cause" for a late appeal.

Administrative Record (AR) at 78. Yauger filed his administrative appeal on June 7, 2011, over

11 months past the July 6, 2010 deadline.

An administrative hearing was held on July 5, 2011. At the July 5 hearing, Yauger

testified that he did not have any "injuries or illnesses that would have prevented [him] from

working" and that he had been "actively pursuing and physically able to perform any job" during

the time that he was unemployed. AR at 19, 22. When Wachovia raised the issue of Yauger's

late appeal, the Administrative Law Judge (ALJ) noted that Yauger did not receive proper notice

of the issue and postponed the hearing.

When the administrative hearing resumed on August 17, Yauger testified that he did not

timely appeal the Department'sdenial of unemployment benefits because he was suffering from

depression over the death of his sister. When.asked why he could not timely file his appeal when

he was capable of seeking employment, Yauger admitted that he did not read the portion of the

Department'sdetermination letter regarding his appeal rights. The ALJ entered an order

dismissing Yauger'suntimely appeal, concluding that Yauger did not establish good cause for

his delay in filing.

Yauger filed a petition for review of the ALJ's dismissal order to the Department

commissioner. Yauger's petition for review asserted for the first time that his PTSD symptoms

caused his late filing. The commissioner affirmed the ALJ's dismissal order and adopted the

ALJ's findings of fact and conclusions of law. The commissioner'sdecision stated in part:

Claimant timely received his Determination Notice dated June 5, 2010.

Claimant skipped to the end of the Determination Notice indicating he had been

denied benefits. Claimant's right of appeal is set forth on the face of the

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Determination Notice. However, claimant admittedly failed to fully read the

notice, including his right of appeal. At the time claimant was suffering from

severe depression over the loss of his sister, but testified to being able to,

available for, and actively seeking work. While we do not discount the affect

sic] claimant'ssisters's [sic] death had on claimant, or minimize the depression

he was suffering, we can not find that they constituted an excusable basis for his

appeal. Ultimately, the facts lead us to conclude it was claimant's negligence in

not fully reading his Determination Notice that lead [sic] to the substantial delay

of nearly a year. Claimant's negligence in handling his affairs does not constitute

an excusable reason for his substantial delay of nearly a year. Given the length of

delay, we agree with the employer representative that the employer would likely

be prejudiced in its ability to present its case. Under these circumstances the

claimant has failed to establish good cause for the filing of his untimely appeal.

AR at 126.

Yauger filed a reconsideration petition, which the commissioner denied. He then filed

for judicial review of the commissioner'sdecision, and the superior court affirmed. Yauger now

timely appeals the commissioner'sdecision to our court.

ANALYSIS

The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, governs

our review of the Department'sfinal administrative decisions. Tapper v. Emp'tSec. Dep't, 122

Wn.2d 397, 402, 858 P.2d 494 (1993). When reviewing an agency action, we "sit[] in the same

position as the superior court, applying the standards of the WAPA directly to the record before

the agency." Tapper, 122 Wn.2d at 402. Because we sit in the same position as the superior

court, we do not give deference to the superior court'sruling. Verizon Nw., Inc. v. Emp'tSec.

Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008). We review the commissioner'sdecision, not

the underlying decision of the ALJ. Verizon Nw., 164 Wn.2d at 915. A commissioner'sdecision

is considered "prima facie correct." Anderson v. Emp'tSec. Dep't, 135 Wn. App. 887, 893, 146

P.3d 475 (2006). The party asserting invalidity of the agency action, here Yauger, bears the
No. 43156 -4 -II

burden of proving its invalidity. RCW 34. 570( a); 05. 1)(Graves v. Emp'tSec. Dep't, 144 Wn.

App. 302, 308, 182 P.3d 1004 (2008).

The WAPA allows us to reverse the Department commissioner'sdecision if, among other

things, the commissioner based his decision on an error of law, substantial evidence does not

support the decision, or the decision was arbitrary and capricious. RCW 34. 570( d), 05. 3)(e)(i)

Tapper, 122 Wn.2d at 402. Additionally, we may provide Yauger relief from the

commissioner'sdecision only if we determine that he "has been substantially prejudiced by the

action complained of." RCW 34. 570( d). 05. 1)(

Under RCW 50. 020, 32.an applicant for unemployment benefits has the right to appeal

the Department'sunfavorable determination of his claim within 30 days of the notification or

mailing date, whichever is earlier. However, the appeal tribunal may, in its discretion, waive the

30 -day time limitation "[f]or good cause shown." RCW 50. 075. 32We apply a three -prong test

in determining whether the applicant has established "good cause" for filing a late appeal. Wells

v. Emp'tSec. Dep't, 61 Wn. App. 306, 311, 809 P.2d 1386 (1991). The criteria considered in

making this determination are: (a) the length of the delay, (b) the excusability of the delay, and

c) whether acceptance of the late filed appeal will result in prejudice to other interested parties,

including the Department. WAC 192- 04- 090( a) -( 1(c); Wells, 61 Wn. App. at 311. We employ

a "sliding scale" analysis whereby a short delay requires a less compelling reason than does a

long delay. Hanratty v. Emp'tSec. Dep't, 85 Wn. App. 503, 507, 933 P.2d 428, 945 P.2d 726

1 RCW 34. 570(05. 3) provides nine bases upon which this court may grant relief from an agency

order. Although Yauger does not state the bases upon which he relies in asserting the invalidity

of the commissioner'sdecision, his claims appear to rely on subsections (d), ( e), and (i).

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1997). In determining excusability, the Department is required to take into account "any

physical, mental, educational or linguistic limitations" of the applicant. WAC 192 -04- 090(2).

Whether an unemployment benefits applicant has shown good cause for an untimely

appeal is a mixed question of law and fact. Wells, 61 Wn. App. at 310. We therefore apply a

substantial evidence standard to the agency'sfactual findings, but review de novo its conclusions

of law. Terry v. Emp'tSec. Dep't, 82 Wn. App. 745, 748 -49, 919 P.2d 111 (1996). Yauger does

not assign error to any of the commissioner'sfindings of fact and, therefore, we treat them as

verities on appeal. RAP 10. g); 3(Tapper, 122 Wn.2d at 407.

Here, the commissioner found that Yauger timely received the Department'sunfavorable

determination notice, but neglected to read the portion of the notice describing his appeal rights.

The commissioner further found that, although Yauger suffered from depression over the death

of his sister, he "testified to being able to, available for, and actively seeking work." AR at 126.

The commissioner concluded that Yauger's negligence in failing to read the Department's

determination notice caused the substantial delay in filing an appeal and that such negligence did

not constitute good cause to excuse the delay.

Yauger does not challenge these factual findings by the commissioner, and they are

consequently verities on appeal. RAP 10. g); 3(Tapper, 122 Wn.2d at 407. If Yauger were

deemed to have challenged these findings, they are supported by substantial evidence in the

record.

Yauger asserts that the commissioner erred in concluding that he failed to establish good

cause for his late filing because the commissioner failed to consider evidence of his PTSD

symptoms. However, evidence concerning Yauger'sPTSD symptoms was not in the record

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No. 43156 -4 -II

before the commissioner when reviewing the ALFs dismissal order. Instead, Yaguer attempted

to present evidence of his PTSD symptoms for the first time in his petition for review to the

commissioner. But, absent an order directing the appeal tribunal to accept additional evidence,

the commissioner must base his or her decision on the "evidence submitted to the appeal

tribunal." RCW 50. 080. 32Accordingly, we hold that the commissioner did not err by failing to

consider evidence of Yauger'sPTSD symptoms.

Next, Yauger asserts that the commissioner'sfailure to consider his PTSD symptoms

when concluding that he failed to establish good cause for untimely filing his appeal violated the

ADA. On this issue, Yauger'sbrief merely states, "Iresearched the [commissioner's] decision,

and believe that it violates the ADA Act7/ 9026/Public Law 101 -336 (42 U. C. SSec. 12101 et

seq)[.]" Br. of Appellant at 6. This single statement is insufficient to merit consideration of

Yauger'sADA claim and we do not further address it. RAP 10. a)(3( 6); Holland v. City of

Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) ( " Passing treatment of an issue or lack of

reasoned argument is insufficient to merit judicial consideration. "); In re Marriage of Olson, 69

Wn. App. 621, 626, 850 P.2d 527 (1993) (Pro se litigants held to the same standard as attorneys).

Finally, Yauger asserts that the Department erred by contacting him "regarding all

notices, deadlines, and requirements via U.S. Mail [versus] e[ -] mail or phone." Br. of Appellant

at 5. We decline to address this argument because the record shows Yauger failed to raise it at

the administrative level. With certain exceptions not applicable here, the WAPA prohibits

appellate review of issues "not raised before the agency .." RCW 34. 554(05. 1). Moreover,

Yauger provides no legal authority to support his argument that the Department was required to

provide notice by way of electronic mail or telephone, and he cannot demonstrate prejudice

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No. 43156 -4 -II

Accordingly, we affirm the commissioner'sorder affirming the ALJ's dismissal of

Yauger's appeal from the Department'sdetermination denying him unemployment benefits.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

BJORC`IV, J. '

We concur:

f

PF,10 R, J.

ANSON, A. J.C

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