RENDERED: MARCH 25, 2016; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2014-CA-002089-MR EARL T. HUDGINS APPELLANT APPEAL FROM TAYLOR CIRCUIT COURT v. HONORABLE DAN KELLY, JUDGE ACTION NO. 14-CI-00131 COMMONWEALTH OF KENTUCKY, KENTUCKY UNEMPLOYMENT COMMISSION, KENTUCKY DIVISION OF UNEMPLOYMENT INSURANCE, AND NALLY & HAYDON SURFACING, LLC APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: JONES, D. LAMBERT, AND THOMPSON, JUDGES. JONES, JUDGE: By Opinion and Order entered October 30, 2014, the Taylor Circuit Court affirmed the Unemployment Commission's dismissal of Appellant Earl T. Hudgins's administrative appeal as untimely. Having reviewed the record,
we agree with Taylor Circuit Court that the appeal was untimely. Accordingly, we AFFIRM. I. BACKGROUND Earl T Hudgins ( Hudgins ) has worked as a paver for Nally & Haydon Surfacing, LLC for more than twenty-two years. Annually, during the winter months, due to weather conditions, Hudgins was laid off work. During those periods of being laid off, Hudgins would draw unemployment benefits. On January 31, 2014, Hudgins received a letter from the Office of Employment and Training, Division of Unemployment Insurance, ( Letter ). In pertinent part, the Letter stated: FINDINGS: An audit matching benefit payments against wages reported by the employer has revealed the claimant worked or earned wages during week(s) benefits were claimed and received for week(s) shown on the back of this form. The claimant certified that under penalty of law that that the information provided was complete and truthful. Each false statement or failure to disclose a material fact in order to obtain or increase any benefit is a violation of KRS 341.990(5) and may be referred for criminal prosecution. RULINGS: However, the claimant is disqualified for week(s) ending 10/6/2012, 10/13/2012, 11/17/2012, 11/24/2012, and for 48 additional weeks commencing 1/26/14 through 12/27/2014, for the act of misrepresentation. Benefits paid for these weeks constitute an overpayment in the amount of $1,904.00. A penalty of $286.00 has also been added to the amount due; your total due to the Division is $2,190.00, which must be repaid to this Division under KRS 314.415. Interest at the rate of 1.5% per month, or any part thereof, will be imposed on and added to the unpaid balance beginning one calendar year from the date of this notice. -2-
... APPEAL RIGHTS: All parties have been notified of this decision, and have the right to file a written appeal. Include the reason for appealing, your name, telephone number, and claimant s SSN... The appeal request must be received by or if mailed, postmarked by 2/17/14... According to Hudgins, he went to the Campbellsville unemployment office on February 17, 2014, to obtain assistance in filing his appeal. There Hudgins met with Kim Bailey ( Bailey ), an employee of the Campbellsville unemployment office, Division of Unemployment ( Division ). Hudgins indicated that Bailey advised him that the Division would deduct the overpayment from future unemployment payments and that he would not need to file an appeal. According to Hudgins, he relied on this information and did not file an appeal on February 17, 2014. On February 18, 2014, Hudgins returned to the Campbellsville unemployment office. After allegedly speaking to another employee, who notified him that he should have filed his appeal on February 17, 2014, Hudgins filed an untimely Request for Appeal. On March 17, 2014, a Referee dismissed Hudgins s appeal as untimely since it was filed beyond the fifteen-day appeal deadline as required by KRS 1 341.420(2). Following the decision of the Referee, on March 19, 2014, Hudgins filed an appeal with the Kentucky Unemployment Commission ( Commission ). The Commission affirmed the decision of the Referee on April 15, 2014. On May 2, 1 Kentucky Revised Statute -3-
2014, Hudgins filed a complaint in the Taylor Circuit Court seeking judicial review of the Commission s Order. On October 30, 2014, by Opinion and Order, the Taylor Circuit Court affirmed the Commission s dismissal of Hudgins s administrative appeal finding it untimely. Hudgins filed a motion for reconsideration, which was overruled on December 8, 2014. This appeal followed. II. STANDARD OF REVIEW "Judicial review of a decision of the Kentucky Unemployment Insurance Commission is governed by the general rule applicable to administrative actions. 'If the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding and it must then be determined whether or not the administrative agency has applied the correct rule of law to the facts so found.'" Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Comm n, 437 S.W.2d 775, 778 (Ky. 1969) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)). Substantial evidence is evidence which has sufficient probative value to induce conviction in the minds of reasonable people. Kentucky State Racing Comm n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). If there is substantial evidence in the record to support an agency's findings, the findings will be upheld, even though there may be conflicting evidence in the record. Kentucky Comm n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). An agency's findings are clearly erroneous if arbitrary or unsupported by substantial evidence in the record. Id. If the reviewing court concludes the rule of law was correctly -4-
applied to facts supported by substantial evidence, the final order of the agency must be affirmed. Kentucky Unemployment Ins. Com'n v. Cecil, 381 S.W.3d 238, 245-46 (Ky. 2012). III. ANALYSIS On appeal, Hudgins maintains that the trial court committed reversible error when it affirmed the Commission and dismissed his claim as untimely. Specifically, Hudgins argues that the Commission is equitably estopped from dismissing his appeal for untimeliness due to Bailey's alleged misrepresentations. We begin with KRS 341.420. It provides: (1) The secretary shall appoint one (1) or more impartial referees according to KRS 341.125 to hear and decide appealed claims. (2) A party to a determination may file an appeal to a referee as to any matter therein within fifteen (15) days after the date such determination was mailed to his last known address.... (4) Unless such appeal is withdrawn, a referee, after affording the parties reasonable opportunity for a fair hearing, shall affirm or modify the determination. The parties shall be duly notified of his decision, together with the reasons therefor, which shall be deemed to be the final decision unless within fifteen (15) days after the date of mailing of such decision, further appeal is initiated under KRS 341.430.... It is undisputed that the Unemployment Office's letter to Hudgins is dated January 31, 2014. Moreover, Hudgins admits receiving the letter in a timely -5-
manner. Hudgins's argument for equitable tolling is based upon Bailey's alleged statement to him that he did not need to file an appeal. Based on Bailey's statements, Hudgins asserts that the Commission should be estopped from relying on the fifteen-day time limit set forth in KRS 341.420(2). In this case, the Referee found the Division mailed a copy of the determination to the claimant s mailing address on January 31, 2014. The claimant s appeal was due February 17, 2014. The claimant filed the appeal on February 18, 2014. The claimant attributes this lateness to misunderstanding the appeals process. Based on this, the Referee concluded that the claimant's appeal was not filed until after the fifteen-day appeal period had expired. The law makes no provisions for extending the appeal period which leaves the referee without authority to hear and decide the case on the merits of the issue from which the claimant appealed as the determination had become final. These findings were also adopted by the Commission and the decision of the Referee was affirmed by them. While we are sympathetic to Hudgins's position, the lower court was correct in its application of the law. Administrative proceedings are creatures of statute. Administrative agencies have only the power conferred by the General Assembly. Grimes v. Kentucky Unemployment Ins. Comm n, 340 S.W.3d 104, 106 (Ky. App. 2011). "It is well settled that '[w]hen grace to appeal [a decision of an administrative body to the circuit court] is granted by statute, a strict compliance -6-
with its terms is required.'" Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978). Hudgins did not invoke the jurisdiction of the administrative agency in a timely manner. That being the case, the agency had no power to enlarge the time for doing so as such power was not given to it by the General Assembly. Louisville Gas and Electric Co. v. Hardin & Meade Co. Property Owners for Co Location, 319 S.W.3d 397 (Ky.2010); Belsito v. U Haul Co. of Kentucky, 313 S.W.3d 549 (Ky.2010); Sajko v. Jefferson Co. Bd. of Ed., 314 S.W.3d 290 (Ky. 2010). Like the Referee and the Commission, this Court is also without authority to extend the appeal period. KRS 341.420 (2) provides for a fifteen-day time period in which an appeal must be filed. The general assembly has provided no statutory exception to this rule. Thus, when Hudgins appealed the decision of the Referee one day after the referee s decision became final, and outside the fifteen-day time period, for an appeal, the Referee was without the authority to hear and decide his claim on the merits. Likewise, because the decision of the Referee is final and because Hudgins s appeal failed to comply with KRS 341.420 (2), jurisdiction of the trial court could not be invoked. As a result, Hudgins s appeal was properly dismissed. IV. CONCLUSION Accordingly, the order of the Taylor Circuit Court dismissing Hudgins appeal is AFFIRMED. -7-
ALL CONCUR. BRIEF FOR APPELLANT: Wesley E. Bright Campbellsville, Kentucky BRIEF FOR APPELLEES KENTUCKY UNEMPLOYMENT INSURANCE and NALLY & HAYDON SURFACING, LLC: Rosemary G. Holbrook Frankfort, Kentucky -8-