FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

ADAM MUELLER GREGORY F. ZOELLER

LISA LAWS KOHLI Attorney General of Indiana

JOSEPH B. GLASS, Certified Legal Intern

Indiana Legal Services, Inc. KRISTIN GARN

Deputy Attorney General

 Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MELISA R. DIGBIE, )

)

Appellant, )

)

vs. ) No. 93A02-1312-EX-1054

)

REVIEW BOARD OF THE INDIANA )

DEPARTMENT OF WORKFORCE )

DEVELOPMENT and EAGLECARE LLC, )

)

Appellees. )

APPEAL FROM REVIEW BOARD OF THE

INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT

Case No. 13-R-4054

May 28, 2014

OPINION - FOR PUBLICATION

NAJAM, Judge
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STATEMENT OF THE CASE

Melisa Digbie appeals the decision of the Review Board of the Department of 

Workforce Development (“Review Board”) in favor of Eaglecare LLC on her claim for 

unemployment benefits. Digbie presents a single issue for our review, namely, whether 

the evidence supports the finding of the Administrative Law Judge (“ALJ”), as adopted 

by the Review Board, that Digbie failed to appear at an evidentiary hearing without good 

cause.

We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

From December 5, 2012, through May 1, 2013, Digbie was employed by 

Eaglecare. Following her termination, Digbie applied for, and received, unemployment 

benefits. On June 28, Eaglecare appealed the Department of Workforce Development 

(“DWD”) claims deputy’s determination of Digbie’s eligibility for benefits, and the 

DWD scheduled a hearing before the ALJ for August 6. A representative of Eaglecare 

attended the August 6 hearing, but neither Digbie nor counsel for Digbie appeared at the 

hearing. The ALJ heard evidence from Eaglecare and concluded that Digbie was 

ineligible for unemployment benefits.

In early September, Digbie discovered that she had missed the hearing date on 

August 6, and she appealed the ALJ’s decision denying her benefits. The Review Board 

ordered the parties to attend a hearing before a new ALJ on the issue of whether Digbie 

could show good cause for failure to appear at the August 6 hearing. Following that 

hearing, the ALJ concluded that Digbie had failed to show good cause and reissued the 
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ALJ’s determination following the August 6 hearing. Digbie appealed that decision to

the Review Board, which affirmed the ALJ’s decision. This appeal ensued.

DISCUSSION AND DECISION

This court set out the applicable standard of review in Abdirizak v. Review Board 

of Indiana Department of Workforce Development, 826 N.E.2d 148, 150 (Ind. Ct. App. 

2005):

When reviewing a decision by the Review Board, our task is to determine 

whether the decision is reasonable in light of its findings. Stanrail Corp. v. 

Unemployment Ins. Review Bd., 734 N.E.2d 1102, 1105 (Ind. Ct. App. 

2000). Our review of the Review Board’s findings is subject to a 

“substantial evidence” standard of review. Stanrail Corp. v. Review Bd. of 

Dept. of Workforce Development, 735 N.E.2d 1197, 1202 (Ind. Ct. App.

2000). In this analysis, we neither reweigh the evidence nor assess witness 

credibility, and we consider only the evidence most favorable to the Review 

Board’s findings. Id. Further, we will reverse the decision only if there is 

no substantial evidence to support the Review Board’s findings. Id.

Here, Digbie contends that the Review Board erred when it found that the 

evidence established a rebuttable presumption that the DWD had properly served Digbie

notice of the hearing because there is no evidence to show that the DWD mailed her such 

notice. The DWD maintains that “[i]t was never disputed below that the [DWD] sent the 

notice by mail to Digbie’s valid address; Digbie’s only contention was that she never 

received it.” Appellee’s Brief at 9. We agree with Digbie.

Relevant to this appeal, 646 Indiana Administrative Code 5-10-19(a) provides as 

follows:

(a) Notice of all hearings or proceedings before an administrative law 

judge, or the review board, unless otherwise directed by statute, shall be 

given by United States mail, with proof of mailing being prima facie 

evidence of service, or by facsimile or electronic means agreed upon by the 
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party receiving the notice, addressed to the parties’ addresses of record on 

file with the department.

* * *

(d) A document mailed to a party is presumed to be received if the 

document was mailed to the complete, correct address of record unless:

(1) there is tangible evidence of nondelivery, such as the 

document being returned to the agency by the United States 

Postal Service; or

(2) credible and persuasive evidence is submitted to the 

agency to establish nondelivery, delayed delivery, or 

misdelivery of the document. 

(Emphasis added).

The Indiana Employment Security Act (“the Act”) is given a liberal construction 

in favor of employees. Abdirizak, 826 N.E.2d at 150. It merits such a construction 

because it is social legislation with underlying humanitarian purposes. Id. The Act 

provides that parties to a disputed claim for unemployment benefits are to be afforded “a 

reasonable opportunity for fair hearing.” Ind. Code § 22-4-17-3. We interpret this 

provision to include reasonable notice, which requires that parties receive actual, timely 

notice. Abdirizak, 826 N.E.2d at 150. Where an administrative agency sends notice 

through the regular course of mail, a presumption arises that such notice is received. Id.

While that presumption is rebuttable, to establish the presumption in the first instance the 

agency must demonstrate that it actually sent the notice through regular mail. See id.

Here, our review of the record indicates that the DWD failed to present any 

evidence to prove that it mailed Digbie notice of the August 6 hearing. Indeed, the DWD 

does not direct us to anything in the record showing proof of mailing. Instead, the DWD 
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suggests that it was entitled to the rebuttable presumption of service because “the notice

of the August 6, 2013, hearing was admitted into evidence by the first ALJ . . . [, so] it 

was already part of the record when the case was remanded to [the second ALJ] for the 

October 2013 hearing, and it did not require re-admission.” Appellee’s Brief at 14

(emphasis added). But the admission into evidence of the notice is not proof of mailing

that notice.

In his findings and conclusions, the second ALJ found in relevant part as follows:

Because the date of the decision is on the face of the hearing notice, it is 

unnecessary for a Departmental employee to testify as to when the 

document was mailed. See Owen County v. Ind. Dep’t Workforce Dev., 

861 N.E.2d 1282, 1289 (Ind. Ct. App. 2007) (stating that “. . . the date of 

the decision is the operative date . . .” that begins the time to timely appeal 

a decision). The date the hearing notice was mailed is on the front of the 

hearing notice, and no additional evidence is necessary to establish what the 

date on the front of the document is already purporting—that the hearing 

notice was mailed to the parties on that day.

Appellant’s App. at 3. First, this court’s opinion in Owen County is obviously inapposite 

here. Our holding in Owen County addressed only the time for filing a notice of appeal 

and had nothing to do with proof of mailing. 861 N.E.2d at 1289. Second, that the notice 

itself purports to state the “Mailing Date of this Document” is not proof that it was 

actually mailed. Appellee’s App. at 18. To hold otherwise would permit countless letters 

to be deemed delivered simply because the letters themselves are written to say so. 

Moreover, satisfying this evidentiary burden is hardly difficult. For example, the agency 

need only offer testimony that the notice was mailed or produce evidence of a

contemporaneous notation in the claimant’s file, similar to a CCS entry, that the notice 

was placed in the mail on a specific date.
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We hold that the DWD presented no evidence that it mailed notice of the August 6 

hearing to Digbie. Thus, the DWD was not entitled to the rebuttable presumption that 

Digbie received notice of that hearing. We reverse the Review Board’s determination 

that Digbie received notice of the August 6 hearing1 and remand for a new evidentiary 

hearing on the merits of Digbie’s application for unemployment benefits.

Reversed and remanded for further proceedings.

VAIDIK, C.J., and BROWN, J., concur.

 

1

 The DWD is not entitled to another hearing on this issue.