Schur v. Department of Workforce Services

2016 UT App 81
THE UTAH COURT OF APPEALS
NATHAN U. SCHUR,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20151064-CA
Filed April 28, 2016
Original Proceeding in this Court
Nathan U. Schur, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Petitioner Nathan U. Schur seeks judicial review of a
decision of the Workforce Appeals Board (the Board) affirming
the Department of Workforce Services’s (the Department)
decision denying unemployment benefits.
¶2 Schur filed a timely appeal of the Department’s decision
denying benefits. The Department scheduled a hearing before an
Administrative Law Judge (ALJ) for September 8, 2015, which
was the day after Labor Day. The hearing notice advised Schur
that by 3:30 p.m. on Friday, September 4, 2015, he must call the
Department’s Appeals Unit to confirm his intention to
participate in the hearing and to provide a telephone number
where he could be reached. The notice advised Schur that if he
failed to timely confirm his intent to participate, the Department
would cancel the hearing, dismiss the appeal, and enter an order
of default.

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¶3 Schur failed to timely confirm his participation.
Accordingly, the ALJ issued an order of default, which advised
Schur that the order would become final unless, within ten days
from the date of the order, he made a written request for a new
hearing. Schur made a timely request, and the Department
scheduled a second hearing for September 29, 2015. The
Department sent a second notice of hearing containing the same
instructions regarding the requirement to confirm participation
by a specified time and date. Schur called within that time and
provided a number where he could be reached for the telephonic
hearing. At the scheduled time, Schur failed to answer the ALJ’s
call. After waiting fifteen minutes for a return call, the ALJ
issued a second order of default. Schur again requested a new
hearing date. The Department scheduled a third hearing for
October 19, 2015, and issued a third notice of hearing that
required Schur to confirm his intent to participate by a specific
date and time. Schur failed to timely confirm his intent to
participate, and the ALJ issued a third order of default.
¶4 After Schur’s failure to participate in three scheduled
hearings, his third request to reopen the appeal was referred to
the Board. The Board directed Schur to advise it of any
circumstances that caused his failure to participate in the
scheduled hearings. Schur claimed that the date on which he
was required to confirm participation in the first hearing was
Labor Day, which is a legal holiday. Schur next claimed that he
was available and had cell phone reception at the time of the
second scheduled hearing but the ALJ did not call him. Finally,
he claimed that he did not receive any confirmation from the
Department that a third hearing was scheduled, and he also
claimed that someone from the Department provided him with
an incorrect number to call. The Board found Schur’s response to
be unpersuasive for the reasons hereafter explained. Ultimately,
the Board concluded that Schur had three opportunities to
participate in a hearing and that his failure to do so was not due
to circumstances beyond his control or excusable neglect, as

Schur v. Department of Workforce Services
20151064-CA 3 2016 UT App 81
defined by rule R994-508-118 of the Utah Administrative Code.
Schur seeks judicial review of the Board’s decision.
¶5 We apply a deferential standard of review to a mixed
question of fact and law when “’the mixed finding is not “law-
like” because it does not lend itself to consistent resolution by a
uniform body of appellate precedent’” or when it “’is “fact-like”
because the [factfinder] is in a superior position to decide it.’” Jex
v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (alteration in
original) (citation omitted). The decision of the Board in this case
is more fact-like. Therefore, we defer to the Board’s decision that
Schur did not demonstrate that he was prevented from attending
any of the scheduled hearings due to circumstances that were
beyond his control or due to excusable neglect.
¶6 Rule R994-508-118(1) of the Utah Administrative Code
states that a request to reopen will be granted if a party “was
prevented from appearing at the hearing due to circumstances
beyond the party’s control.” The rule further provides that a
request may be granted due to “mistake, inadvertence, surprise,
excusable neglect, or any other reason justifying relief” and that
“*t+he determination of what sorts of neglect will be considered
excusable is an equitable one,” listing some “relevant
circumstances” to be considered. Utah Admin. Code R994-508-
118(2). “Excusable neglect is not limited to cases where the
failure to act was due to circumstances beyond the party’s
control.” Id. R994-508-118(4).
¶7 Before the Board and this court, Schur claimed that he
was not given an opportunity for a hearing. The Board found
that the Department made every attempt to notify Schur of the
hearings by sending notices to his address of record. Although
Schur denied receiving the third notice of hearing, the Board
found that the record demonstrated that the Department sent the
third notice to the same electronic correspondence address
where Schur had received the two previous notices. Moreover,

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20151064-CA 4 2016 UT App 81
Schur had recently filed a request to reopen the appeal, and
given his familiarity with the procedures, he knew or should
have known that the Department would be sending another
notice of hearing to him. The Board found Schur’s claim that he
did not receive the third notice not to be credible. The Board also
found Schur’s claim that he missed the three hearings because of
poor communications from the Department not to be credible.
Specifically, the first notice of hearing did not require him to
confirm his participation on Labor Day, as he claimed. It instead
required him to confirm participation by the previous Friday.
The Board also found the claim that a Department representative
provided the wrong phone number to be unpersuasive because
the notices provided the correct number, which Schur had used
to confirm his participation in the second hearing. Finally, the
Board found Schur’s claim that he did not receive the ALJ’s call
for his second hearing not to be credible. The Board’s factual
findings are supported by substantial evidence in the record,
and those findings support the Board’s decision that Schur failed
to demonstrate a justifiable reason for his failure to participate in
any of the scheduled hearings.
¶8 Before the Board and this court, Schur attempted to argue
the merits of his appeal of the Department’s denial of benefits.
Because Schur failed to participate in a hearing where he would
have had the opportunity to present evidence, including sworn
testimony, the Board did not consider the merits of his appeal.
By failing to participate in any of the three hearings scheduled to
consider his agency appeal, Schur also failed to provide any
evidence that could be considered by this court in a proceeding
for judicial review. See Gregory v. Department of Workforce Servs.,
2015 UT App 264, ¶ 8, 361 P.3d 701 (per curiam).
¶9 We do not disturb the Board’s decision denying a request
to reopen the appeal and affirming the denial of benefits.