SUBCHAPTER 24C - initial appeals from determination and higher authority review

 

SECTION .0100 – GENERAL INITIAL APPEALS INFORMATION

 

04 NCAC 24C .0101          APPEAL DATE ESTABLISHED BY TESTIMONY

(a)  A party shall be allowed to establish an appeal date earlier than a postal meter date, or the date of a document only in the face of clear and convincing evidence.

(b)  When a party alleges filing an appeal that DES never received, the party shall present clear and convincing evidence of a timely filing, which may be corroborated by testimony or physical evidence linked to the appeal in question.

(c)  The Appeals Referee shall allow cross-examination to establish timeliness of an appeal consistent with 04 NCAC 24A .0106.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

04 NCAC 24C .0102          EXCEPTION TO TIMELINESS REQUIREMENT

Timeliness sanctions shall be waived when DES or an agent state representative gives misleading information on appeal rights to a party, if the party:

(1)           establishes what he or she was told was misleading and how he or she was misled;

(2)           identifies, if possible, the individual who misled him or her; and

(3)           no written instructions contrary to the misleading information were provided by DES to the party with service of the order being appealed.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0103          BASE PERIOD EMPLOYER DENIED NONCHARGING

A base period employer who was not the claimant's last employer may file an appeal from a determination denying noncharging of benefits to its account as provided in 04 NCAC 24D .0200.  The claimant is not a party with appeal rights in this appeal.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24C .0104          EMPLOYER PARTY TO DETERMINATION

An employer may file an appeal from a determination that affects a claimant's entitlement to benefits if the employer is a party to the determination.  Only one employer shall be a party with appeal rights to a proceeding.

(1)           An employer named as the last employer on an initial claim shall be a party to a determination ruling on the merits of the claimant's separation from employment and other specific issues raised by the employer regarding the claimant's entitlement to benefits.

(2)           An employer named as the last employer on an additional or continued claim shall be a party to a determination ruling on the merits of that additional or continued claim regarding separation from employment or other specific issues raised by the employer if the employer:

(A)          was the employer named as the last employer on the claimant's initial claim; or

(B)          is a base period employer whose account has been ruled subject to charging of benefits.

(3)           A reimbursing employer named as the last employer on an additional or continued claim shall be a party to a determination ruling on the merits of that additional or continued claim regarding separation from employment or other specific issues raised by the employer if the employer:

(A)          was the employer named as the last employer on the claimant's initial claim; or

(B)          is a base period employer.

(4)           If an employer, during a claimant's benefits year, provides DES with information that raises specific issues, including a potential disqualification, ineligibility, allegations of fraud, or other issues that affect a claimant's entitlement to benefits, the employer shall be a party with appeal rights to a determination ruling on the merits of the specific issue raised by the employer if the employer is:

(A)          named as the last employer on the claimant's initial claim;

(B)          a base period taxed employer whose account has been ruled subject to charging of benefits, even if that employer was named as the last employer on the claimant's initial claim and did not timely respond to notice of the claimant's initial claim; or

(C)          a base period reimbursing employer.

(5)           An employer against whom a claimant has alleged entitlement to additional base period wages shall be a party with appeal rights to that issue.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4; 96-15;

Eff. July 1, 2015.

 

SECTION .0200 – iNITIAL APPEALS HEARING

 

04 NCAC 24C .0201          appeaRANCE BY PARTY

An appearance by a party to an appeals hearing includes offering testimony, questioning witnesses, and presenting oral argument.

(1)           A party shall appear by telephone when the party participates in the telephone conference call with the Appeals Referee on the date and time of the hearing and participates in the proceedings.

(2)           A party shall appear in person at the location on the date and times scheduled for the in-person hearing, and participate in the proceedings.

Mere submission of written documents or observation of the proceedings does not constitute an appearance.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0202          PRESENTING AND SCHEDULING APPEALED CLAIMS

A party wishing to appeal from an adjudicator's determination shall file an appeal by mail, facsimile, or email pursuant to Rule 04 NCAC 24A .0104(b).

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0203          CONTENTS OF APPEAL TO APPEALS SECTION

A party's written appeal shall contain the following:

(1)           the date of the appeal;

(2)           the identity of the determination being appealed;

(3)           a clear statement of the party's intent to appeal; and

(4)           the name of the party appealing.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0204          APPEALS HEARING NOTICE

(a)  The Appeals Section shall mail notice of the hearing to each party at least 14 days before the hearing date, unless a party elects to receive notices by electronic transmission pursuant to 04 NCAC 24A .0103.

(b)  A party who elects to receive correspondence and notices by electronic transmission shall receive an email notification that the hearing notice, documents, or other information are available for electronic retrieval, along with instructions for retrieval.

(c)  Notice of the hearing shall include:

(1)           the determination appealed;

(2)           the appealing party;

(3)           the time of the hearing;

(4)           the date of the hearing;

(5)           if requested at the time of filing the appeal, the physical location of an in-person hearing;

(6)           the telephone number of each party for telephone hearings;

(7)           each issue, with statutory reference, to be heard and decided;

(8)           the name and contact information of the designated Appeals Referee;

(9)           the manner by which witnesses may offer evidence and participate in the hearing;

(10)         each party's right to legal representation;

(11)         instructions for requesting a rescheduling of the hearing;

(12)         each party's right and instructions for requesting the issuance of a subpoena for the production of records or individuals to appear to testify;

(13)         instructions on how to request an in-person hearing; and

(14)         instructions on how to give evidence for a hearing.

(d)  The determination, the written appeal, and any additional documents provided to the Appeals Section by either party shall accompany the hearing notice.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015;

Amended Eff. September 1, 2017.

 

04 NCAC 24C .0205          TELEPHONE HEARINGS

(a)  Hearings shall be conducted by telephone conference call, unless a request is made for an in-person hearing at the time the appeal is filed or an objection is made pursuant to Rule .0206 of this Section.

(b)  In cases of telephone hearings, the Appeals Section shall provide a Telephone Hearing Questionnaire for each party to use to submit each telephone number to be called by the Appeals Referee for the hearing.

(c)  Each party may complete and submit the Telephone Hearing Questionnaire containing each number to be called for the hearing to the Appeals Referee listed in the hearing notice, or pursuant to 04 NCAC 24A .0104(b).

(d)  After receiving the hearing notice, and prior to the hearing, any party may contact the Appeals Referee to provide the name of each participant and each telephone number to be called for the hearing. In the absence of the submission by a party of any telephone number to be called for the hearing, the Appeals Referee shall call the party at the telephone number listed on the hearing notice.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015;

Amended Eff. October 1, 2017.

 

04 NCAC 24C .0206          IN-PERSON HEARINGS

(a)  A party may request an in-person hearing:

(1)           at the time the appeal is filed; or

(2)           by filing a written objection to the telephone conference call to:

(A)          the Appeals Section as provided for in 04 NCAC 24A .0104; or

(B)          the designated Appeals Referee using the contact information provided on the hearing notice.

(b)  If travel is required to conduct the in-person hearing, the objecting party shall be required to travel to a location convenient to the non-objecting party and where the Division regularly conducts in-person hearings as determined by the Appeals Referee based on each party's location.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0207          RESCHEDULING A HEARING

(a)  Either before or during a hearing, an Appeals Referee, on his or her own motion, or on the motion of a party, may continue or adjourn a hearing for "good cause" in accordance with 04 NCAC 24A .0105.  In addition to the reasons set forth in G.S. 96-15(d1), a continuance or an adjournment, may be granted at the request of a party due to:

(1)           illness of the party;

(2)           death in the immediate family of the requesting party;

(3)           a need to obtain an interpreter or translator;

(4)           a religious observance;

(5)           jury duty;

(6)           actively seeking legal representation;

(7)           court appearance unrelated to DES;

(8)           active military duty;

(9)           scheduling conflict created by new employment; or

(10)         to accommodate the business needs of the employer.

(b)  Before a hearing, requests for a continuance of the hearing shall be made to the designated Appeals Referee orally or in writing.  The request for a continuance of a hearing shall specifically state and explain the reasons for the request.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0208          DISQUALIFICATION OF APPEALS REFEREE

(a)  An Appeals Referee shall be free of any personal interest or bias in the appeal over which he or she is presiding.

(b)  An Appeals Referee shall not participate in hearing an appeal in which that Appeals Referee has a personal interest in the outcome of the appeals decision.

(c)  An Appeals Referee may recuse themselves from a hearing to avoid the appearance of impropriety or partiality.

(d)  A pre-hearing challenge to the impartiality of a designated Appeals Referee shall be in writing, addressed to the Chief Appeals Referee, and shall be heard and decided by the Chief Appeals Referee or designee.

(e)  The Chief Appeals Referee or designee's decision on any pre-hearing challenge to the impartiality of an assigned Appeals Referee shall be in writing and mailed to the parties.

 

History Note:        Authority G.S. 96-4; 96-15; 20 CFR 650.2;

Eff. July 1, 2015.

 

04 NCAC 24C .0209          CONDUCT OF HEARINGS

(a)  Consistent with G.S. 96-15(f), all hearings shall be conducted in a manner to preserve the substantial rights of the parties.

(1)           The parties to an appeal before an Appeals Referee have the right to present relevant and material evidence as determined by the Appeals Referee.

(2)           The Appeals Referee may ask questions to develop the record as to the relevant facts, circumstances, and issues presented at the hearing.

(3)           The Appeals Referee may examine parties and witnesses, and shall allow cross-examination to the extent necessary to afford the parties due process.

(4)           All issues relevant to the appeal shall be considered and ruled upon.

(b)  The Appeals Referee shall give each party 10 minutes from the time of the scheduled hearing to appear for the hearing.  If the appealing party fails to appear at the hearing and a continuance had not been previously granted the Appeals Referee shall issue an Appeals Decision dismissing the appeal.

(c)  A party desiring to introduce documents or other evidence at a hearing shall provide an authenticated copy plus one copy for the Appeals Referee to include in the official record, and a copy to each party to the proceeding.  Documents or other evidence shall be provided to the opposing party prior to the hearing.

(d)  A party offering numerous documents into evidence shall prepare a list of documents in the order of their presentation.  The list shall be provided to the Appeals Referee and opposing party before the hearing, to become part of the official hearing record. 

(e)  Official notice may be taken of all facts for which judicial notice may be taken and of other facts within the specialized knowledge of the DES.  The official notice and its source shall be stated on the record and made known to the parties at the earliest practicable time.  A party shall be given an opportunity to dispute the noticed fact by argument and submission of evidence.

 

History Note:        Authority G.S. 96-4; 96-15; 20 CFR 650.2;

Eff. July 1, 2015.

 

04 NCAC 24C .0210          HEARSAY

(a)  Hearsay evidence shall be accepted as credible evidence only when it:

(1)           falls within the statutory or common law exceptions to the hearsay rules; or

(2)           has an equivalent indicia of trustworthiness as competent evidence; and

(3)           is more probative on the point for which it is offered than any other evidence which the party offering the hearsay could reasonably be expected to procure.

(b)  The Appeals Referee may permit the parties to file an affidavit at the time of the hearing in the same manner as applicable to other hearsay evidence.

 

History Note:        Authority G.S. 8C, Art. 8; 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0211          CONTROLLED SUBSTANCE RESULTS

In lieu of live testimony from a laboratory representative at a contested claims hearing, an affidavit from an authorized representative of the laboratory may be presented to prove controlled substance examination results, chain of custody, or compliance with all testing or retesting required by federal or state law.

(1)           When a party desires to introduce the affidavit at the hearing, a copy of the affidavit shall be received by the party against whom the affidavit will be offered at least two days before the hearing.

(2)           If the party who desires to introduce the affidavit is unable, despite reasonable efforts, to accomplish the required service within the time specified, the Appeals Referee may adjourn or continue the hearing to allow such service to be accomplished.  However, the Appeals Referee shall not continue the hearing if the party against whom the affidavit is offered has refused to accept service or has taken other steps to avoid or delay receipt of the affidavit.

(3)           At the hearing, the party shall offer an authenticated copy of the affidavit as an exhibit.

(4)           If the party against whom the affidavit is offered objects to the entry of the affidavit into the official record, the objecting party may request an adjournment or continuance of the hearing to subpoena the author of the affidavit.  The affidavit's author shall be permitted to testify by telephone at the reconvened hearing.

(5)           Once the affidavit is made a part of the official record of evidence compiled by the Appeals Referee, the Appeals Referee may in their discretion, base findings of fact on the affidavit.

(6)           The results of the controlled substance examination and compliance with any applicable statutory or regulatory procedural requirements shall be deemed proven if the claimant admits or stipulates to them during the hearing or by affidavit.

 

History Note:        Authority G.S. 95-230; 95-231; 95-232; 95-233; 95-234; 96-4; 96-15; 96-235;

Eff. July 1, 2015.

 

04 NCAC 24C .0212          CONTENTS OF APPEALS DECISION

(a)  The Appeals Decision shall include:

(1)           the names of the individuals present for the hearing;

(2)           findings of fact necessary for a resolution of the appeal;

(3)           the applicable statutory provisions;

(4)           conclusions of law;

(5)           the name of the Appeals Referee who conducted the hearing and rendered the decision; and

(6)           notice of each party's right to file an appeal of the Appeals Decision and the time period for filing an appeal.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

SECTION .0300 - LEGAL REPRESENTATION FOR INITIAL APPEALS

 

04 NCAC 24C .0301          ADMINISTRATIVE PROCEEDINGS

(a)  An individual who is a party to a proceeding may represent himself or herself before an Appeals Referee.

(b)  A partnership or association may be represented by any of its members.

(c)  A corporation may be represented by an officer.

(d)  Any party may be represented by a legal representative as defined in 04 NCAC 24A .0105.

 

History Note:        Authority G.S. 84; 96-4; 96-15; 96-17;

Eff. July 1, 2015.

 

04 NCAC 24C .0302          NOTICES AND SERVICE TO PARTY

(a)  Notices or certification of legal representation shall be in writing and presented to the Appeals Referee to become part of the official record, and shall contain:

(1)           the name of the supervising attorney;

(2)           the name of the person being supervised;

(3)           the supervising attorney's active North Carolina State Bar number; and

(4)           the phone and address information of the supervising attorney.

(b)  When a party has a legal representative, all documents or information required to be provided to the party shall only be provided to the legal representative, unless otherwise instructed on the record during the hearing.  An address provided to an Appeals Referee for mailing of an Appeals Decision does not constitute a change of address with DES as set forth in 04 NCAC 24A .0102.

 

History Note:        Authority G.S. 84; 96-4; 96-15; 96-17;

Eff. July 1, 2015.

 

SECTION .0400 – SUBPOENAS FOR INITIAL APPEALS

 

04 NCAC 24C .0401          ISSUANCE OF SUBPOENAS

(a)  Subpoenas to compel the attendance of witnesses and the production of records for any appeal hearing may be issued at the direction of the designated Appeals Referee.

(1)           A subpoena may be issued at the request of a party or on motion of the Appeals Referee.

(2)           Any documentation showing service of the subpoena shall become part of the official hearing record.

(3)           Any request for a subpoena shall be in writing, sent to the Appeals Referee, and shall include:

(A)          the name of the party requesting the subpoena;

(B)          the claimant's name;

(C)          the docket number of the case;

(D)          the name, address, and telephone number of each person sought for appearance at the hearing;

(E)           the specific identification of any document, recording, or item sought, including a detailed description of where the item is located;

(F)           the name and address of the individual or party in possession of any item sought; and

(G)          a statement of why the testimony or evidence to be subpoenaed is necessary for a proper presentation of the case.

(4)           The request shall be granted only to the extent that the items or testimony sought appears relevant to the issues on appeal.

(b)  Legal representatives may issue subpoenas at their own expense only if prior consent is obtained by the designated Appeals Referee.

(c)  Subpoenas shall be issued at least five days before the date of the scheduled hearing.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24C .0402          OBJECTION TO SUBPOENA

(a)  Any party or person receiving a subpoena may serve a written objection to the issuance of a subpoena.  The objection shall be addressed to the designated Appeals Referee, sent prior to the hearing, and contain the following:

(1)           the reasons for the objection; and

(2)           the relief sought by the objecting party.

(b)  The Appeals Referee shall rule on the objection and notify the parties of the ruling before the hearing.  The Appeals Referee's ruling shall be in writing or recorded as part of the official hearing record.

 

History Note:        Authority G.S. 96-4; 96-15;

Eff. July 1, 2015.

 

SECTION .0500 – HIGHER AUTHORITY REVIEW OF APPEALS DECISION

 

Codifier's Note: Rules codified as 04 NCAC 24C .0501-.0506 were transferred to 04 NCAC 24F .0201-.0206 effective October 1, 2017.

 

SECTION .0600 - POST-DECISION RELIEF

 

04 NCAC 24C .0601          POST-DECISION RELIEF

 

History Note:        Authority G.S. 96-4; 96-11.4; 96-15;

Eff. July 1, 2015;

Temporary Repeal Eff. March 1, 2016;

Temporary Repeal Expired December 10, 2016;

Repealed Eff. April 1, 2017.