Unemployment Compensation Review Commission
Chapter Five

Filing a Timely Appeal

A.  General Requirements

  1. The right to appeal is established by Ohio Revised Code Section 4141.281. Any appeal must comply in strict accordance with the statute. Miller v. Cuyahoga County, 1999 Ohio App. LEXIS 3310.
     
  2. An appeal may be filed with: {ORC §4141.281(D)(l)}
     
    1. The Director;
       
    2. The Review Commission;
       
    3. Any state or federal employee who has the duty of accepting claims; OR
       
    4. Any employee of the Unemployment Insurance Commission of Canada who has the duty of accepting claims.
       
    5. An appeal must be filed with one of these entities enumerated in the law. For example, mailing a letter to the Governor of Ohio does not constitute filing an appeal. See Middletown City Board of Education v. OBES (April 14, 1977), Butler CP No. CV-75-06-0532, unreported.
       
  3. An appeal must be mailed to the entity's correct address. Mailing an appeal to an incorrect address does not constitute filing an appeal. See Long John Silver's Fish & Chip Restaurant v. Board of Review (Oct. 26, 1978), Montgomery CP No. 78-525, unreported.
     
  4. An appeal must be in writing, and must indicate a desire to appeal. {ORC §4141.281(D)(1)}
     
  5. An appeal can be filed ONLY by an Interested Party. {ORC §4141.281(D)(1)}
     
  6. An appeal must be filed timely, which means that it must be filed within twenty-one (21) calendar days after the determination or decision was sent to the party's last known address. The "date mailed" date printed on a determination or decision is sufficient evidence to establish the date of mailing. {ORC §4141.281(D)(1)}

B.  Extending the Time for Filing an Appeal

  1. When the last day of an appeal period is a Saturday, Sunday, or legal holiday, the appeal period is extended to the next work day. {ORC §4141.281(D)(9)}
     
  2. When a party provides certified medical evidence stating that the party's physical condition or mental capacity prevented the party from filing a timely appeal, the appeal period is extended to twenty-one days after the end of the physical or mental condition. {ORC §4141.281(D)(9)}
     
    1. The physical or mental condition must have prevented the party from filing an appeal within the appeal period, not merely on the last day.
       
    2. Certified medical evidence must be presented demonstrating both the condition and that the condition actually prevented timely filing of the appeal. Keller v. Dura Temp Corp. (Dec. 27, 2004), Lucas CP No. CI04-3045, unreported ("mild short-term memory issues" did not prevent timely filing).
       
    3. For example, an inability to read or write well is not a condition which will extend the time for filing an appeal. See Mussetter v. Davon (Feb. 2, 1994), Clinton CP No. 63 CVD-265, unreported.
       
  3. When the Director or Review Commission finds that the party did NOT receive the determination or decision within the twenty-one day appeal period, the appeal period is extended to twenty-one days after the party actually receives the determination or decision. {ORC §4141.281(D)(9)}
     
    1. When a determination or decision was mailed to the party's last known address, there is a rebuttable presumption that the party received the determination or decision within the appeal period. See U.A.W. v. Giles (1982) N.D. Ohio, No. C-81-415, unreported.
       
    2. To rebut this presumption, the party must produce affirmative, credible evidence, which may consist of the party's testimony, establishing that the party did NOT receive the determination or decision within the twenty-one day appeal period. {ORC §4141.281(D)(9)}
       
    3. Under an agreement with the Legal Aid Society of Ohio, if the Director or Review Commission finds that the party received the determination or decision on the last day of the twenty-one day appeal period, the appeal period is extended to twenty-one days after the party actually receives the determination or decision.
       
  4. When the determination or decision is NOT mailed to the party's correct address, but the party receives the decision, Commission policy affords the party a reasonable time to respond.
     
    1. A party must act within the appeal period if the decision is received on or before the 16th day of the appeal period.
       
    2. If received after the 16th day, the party has 21 days from the date of receipt in which to file a timely appeal.

C.  Determining When an Appeal was Filed

  1. In Person Filing. If an appeal is filed in person, to the office of one of the enumerated entities discussed above, the appeal is filed on the date it is delivered to, and received by, the entity. See Zastrow v. Giles 1979 Ohio App. LEXIS 9427.
     
  2. Filing by U.S. Mail. If an appeal is delivered to the office of one of the enumerated entities discussed above through the U.S. Mail, the appeal is filed on the date the appeal is postmarked. {ORC §4141.281(D)(l)}
     
    1. Merely placing an appeal in a mailbox does NOT constitute filing. When a party claims to have placed an appeal in a mailbox before the end of the appeal period, but the appeal is postmarked after the end of the appeal period, the appeal has NOT been timely filed. See Board of Review v. Roppo (1979), 61 Ohio App.2d 220; Van Niel v. Board of Review, 1978 Ohio App. LEXIS 10215 (holding that the appealing party is responsible for any delay between the date the appeal is placed in a mailbox and the date the appeal is postmarked).
       
    2. Mailing an appeal which is returned to the party for insufficient postage does NOT constitute filing. Cash v. ODJFS (Dec. 2, 2003), Ross CP No. 03 CI 245, unreported. However the party chooses to refile the appeal, whether by mail, fax, or in-person delivery, that later attempt to appeal must be completed before the end of the appeal period. See Lasky v. Board of Review, 1983 Ohio App. LEXIS 12885; Maxley v. Erbaugh (Sept. 11, 1979), Montgomery CP No. 79-1285, unreported (holding that the appealing party chooses the means of delivering the appeal and bears the risk of non-delivery).
       
    3. Placing an appeal with a delivery service, such as Federal Express, does NOT constitute filing. An appeal delivered by such delivery service is filed on the date the appeal is delivered to, and received by, the office of one of the enumerated entities discussed above.
       
    4. A public or private meter postmark is a "postmark" for purposes of determining the date an appeal was filed. Bowman v. Administrator (1987), 30 Ohio St.3d 87.
       
      1. The statute now equates a postal meter postmark with a postmark date. {ORC §4141.281(D)(1)}
         
      2. If an appeal with a private meter postmark is received by the Department more than five work days after the date of the postmark, the Director may request that additional evidence verifying the meter imprint date be provided, and may consider such evidence in determining the date of receipt. {OAC 4141-19-01(B)(2)(b)}
         
    5. Where the postmark date is illegible or missing:
       
      1. The appeal is timely filed if it is received no later than the end of the fifth calendar day following the last day of the specified appeal period. {ORC §4141.281(D)(l)}
         
      2. If the end of the fifth calendar day following the last day of the specified appeal period is a Saturday, Sunday, or legal holiday, the appeal period is extended to the next work day. {ORC §4141.281(D)(9)}
         
  3. Filing by electronic means. If an appeal is filed by fax or via the Internet, to the office of one of the enumerated entities discussed above, the appeal is filed on the date the fax or Internet message is received by the entity. {OAC 4141-19-01(B)(3)(a)}
     
    1. The fax or appeal filed via the Internet must be received in an intelligible and complete form, or it can be disregarded by the Director or Review Commission. {OAC 4141-19-01(B)(3)(b)}
       
    2. The appeal is considered to be timely if the fax or message is received by midnight of the last day of the appeal period.
       
  4. Independent Verification.
     
    1. Where ODJFS or the Review Commission has not received, has disregarded as unintelligible or incomplete, or is unable to locate an appeal, the appeal will be considered to have been received timely if the sender provides independent verification to demonstrate that the appeal was mailed, submitted electronically or filed in person within the statutorily prescribed time frame. {OAC 4141-19-01(C)}
       
    2. Absent such independent verification, a missing fax or Internet message cannot be considered as a timely appeal. Adams v. Review Commission (Dec. 29, 2004), Cuyahoga CP No. 535782, unreported.
       

D.  Appeal to Court

  1. Any interested party, within thirty days after written notice of the Review Commission's final decision is sent to all interested parties, may appeal the decision of the Commission to the court of common pleas.{ORC 4141.282(A)}
     
  2. The appeal shall be filed with the court of common pleas of the county where the appellant: {ORC 4141.282 (B)}
     
    1. if an employee: is a resident or was last employed.
       
    2. if an employer: is a resident or has a principal place of business in the state.
       
    3. if none of the above apply, then the appellant shall file in Franklin County.
       
  3. Within 45 days after a notice of appeal is filed, or within an extended period ordered by the court, the Commission shall file with the clerk a certified transcript of the record of the Commission's proceedings. If the Commission cannot file the certified transcript within this time period, the court shall remand the matter to the Commission for additional proceedings in order to complete the record on appeal. {ORC 4141.282 (F)}
     
  4. The court shall hear the appeal upon receipt of the certified record provided by the Commission. If the court finds that the decision of the Commission was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the matter to the Commission. Otherwise, the court shall affirm the decision of the Commission. {ORC 4141.282 (H)}
     
  5. In an appeal from a decision issued by the Review Commission, Ohio courts can only consider the evidence presented to the Commission. Akron City School District v. UCRC (Sept. 20, 2000), Summit CP No. CV00-06-2453, unreported (court refused to consider claimant's criminal conviction because it occurred after the Commission's hearing).
     
  6. In an appeal from a Review Commission decision concerning a labor dispute involving twenty-five or more individuals,
     
    1. if the employer's operations are located in only one county, the appeal shall be taken to the court of common pleas of that county.
       
    2. if the employer's operations are located in more than one county, the appeal shall be taken to the court of common pleas of the county where the largest number of the claimants worked for the employer.