Frederick v. REV. BD. OF INDIANA EMPL. SEC. DIV.

448 N.E.2d 1230 (1983)

Kathy P. FREDERICK, Appellant, v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, As Members of and As Constituting the Review Board of the Indiana Employment Security Division and Sizzler Steak House, Appellees.

No. 2-982A313.

Court of Appeals of Indiana, Third District.

May 25, 1983.

Rehearing Denied July 14, 1983.

J. Mark Robinson, Carmen Brummet, Legal Services Organization of Indiana, Inc., New Albany, for appellant.

Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellees.

STATON, Judge.

Sizzler Steak House fired Kathy Frederick. After a hearing, the Appeals Referee found that Frederick was not entitled to unemployment benefits. On July 9, 1982, she received notice of the referee's decision.

Pursuant to IC 1979, XX-X-XX-X (Burns Code Ed.), Frederick had fifteen days from July 9th to appeal the referee's decision to the Review Board (Board). She timely appealed on July 16, 1982. Later, on July 23, her attorney filed his appearance with the Board and indicated his willingness to present oral argument or to submit a brief. However, two days before it received notice of the attorney's appearance, the Board issued its decision to adopt the referee's findings and conclusions.

On appeal, Frederick contends that she was denied an opportunity to request a board hearing even though she had filed a request for appeal which inherently included a request for a hearing.

Affirmed.

The Indiana Administrative Code (IAC) requires the parties to file all pleadings on designated forms. 640 I.A.C. 1-11-14. It should be noted that no IAC rule requires the filing of a specific form to request a hearing. The lack of a specific form for a hearing request is explained in 640 I.A.C. 1-11-7 which governs the procedures of Board appeals:

"Sec. 7. Appeals to Review Board. Within fifteen (15) days after the date of notification or mailing of the decision of the referee, either party may appeal to the Review Board. Such appeal shall be filed at the claims-holding local office or Administrative Office, on Form 651, `Request *1231 for Appeal to Review Board.' When accepted by the Board, or its authorized representative, the receipt of any document that indicates on its face a desire to appeal and contains the information requested by the above-mentioned Form 651 shall be treated as being in compliance with this regulation. The Review Board may grant or deny such a request for the hearing, and shall immediately notify all parties in writing. If such a hearing is granted, the Review Board shall immediately set a date for hearing not earlier than five (5) days from the date of the request for hearing. (Indiana Employment Security Board; Reg 1007; filed Dec. 13, 1945, 10:40 am: Rules and Regs. 1947, p. 944; filed Oct. 25, 1949, 4:20 pm: Rules and Regs. 1950, p. 54; filed Dec. 6, 1966, 11:15 am: Rules and Regs. 1967, p. 52)" (Emphasis added).

As section 7 states, a request for a hearing is inherently included in a request for appeal. Therefore, Frederick's timely filed request for appeal also served as her request for a hearing.

It is permissible for the Board to base its decision entirely on the record made before the referee. Alcoa v. Review Board of the Indiana Employment Security Division (1981), Ind. App., 426 N.E.2d 54, 57. Thus, when a request for appeal is filed, the Board has the discretion to grant or deny a hearing.[1] According to the Board, an examination of the record showed that a hearing was unnecessary.

Because Frederick's request for appeal served as her request for a hearing, the Board did not deny her an opportunity to request a Board hearing.

Affirmed.

HOFFMAN, P.J., and GARRARD, J., concur.

NOTES

[1] Once the Board has granted a hearing, it may limit the parties to oral argument, written briefs, or both. 640 I.A.C. 1-11-8.