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COA orders new hearing due to lack of proof notice was mailed

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The Indiana Court of Appeals ordered a new evidentiary hearing on the merits of a woman’s application for unemployment benefits after holding that the Department of Workforce Development didn’t prove that it mailed notice of a hearing to the woman.

Melisa Digbie, who worked for Eaglecare LLC for six months, was receiving unemployment benefits when Eaglecare appealed to the DWD. The department scheduled a hearing before an administrative law judge Aug. 6, but Digbie nor her counsel appeared. The ALJ held that she was ineligible for unemployment benefits.

After learning she missed the hearing, Digbie appealed. Both parties appeared before a different ALJ on the issue of whether she could show good cause for not appearing at the meeting. That ALJ said she could not; Digbie appealed to the review board of the DWD, and it affirmed. The review board found that the evidence established a rebuttable presumption that the DWD had properly served Digbie notice of the hearing.

DWD failed to present any evidence to prove it mailed Dibgie notice of the Aug. 6 hearing, the COA pointed out. The DWD suggested that it was entitled to the rebuttable presumption of service because the notice of the Aug. 6 hearing was admitted into evidence by the first ALJ, so it was already part of the record when it was remanded to the second ALJ and did not require readmission.

“But the admission into evidence of the notice is not proof of mailing that notice,” Judge Edward Najam wrote in Melisa R. Digbie v. Review Board of the Indiana Department of Workforce Development and Eaglecare LLC, 93A02-1312-EX-1054.

“[T]hat the notice itself purports to state the ‘Mailing Date of this Document’ is not proof that it was actually mailed. To hold otherwise would permit countless letters to be deemed delivered simply because the letters themselves are written to say so,” Najam continued. “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.”

Because the DWD didn’t present evidence it mailed the notice, it was not entitled to the rebuttable presumption Digbie received notice of the Aug. 6 hearing, the court held.
 

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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