IN THE SUPREME COURT OF THE STATE OF IDAHO 
Docket No. 32140 

TOM R. OBENCHAIN, 
Claimant-Appellant, 

v. 

MCALVAIN CONSTRUCTION, INC., 
Employer, and STATE OF IDAHO, IDAHO 
COMMERCE & LABOR, 
Respondents. 

)))))))))))) 
Boise, April 2006 Term 
2006 Opinion No. 67 
Filed: June 5, 2006 
Stephen W. Kenyon, Clerk 

Appeal from the Industrial Commission of the State of Idaho. 
The Industrial Commission’s decision is affirmed. 

Tom R. Obenchain, appellant, pro se, Boise. Tom R. Obenchain argued. 
Honorable Lawrence G. Wasden, Attorney General, Boise, for 
respondents. Evelyn B. Thomas argued. 
_________________ 
JONES, Justice 

This is an appeal from the Industrial Commission’s denial of an unemployment 
compensation claim because the appeal was untimely. We affirm. 

I. 

In 2005, while employed by McAlvain Construction, Inc., Obenchain took a oneweek 
approved vacation. Upon returning to work, Obenchain requested additional time 
off to care for an unhealthy relative. Additional leave was granted and Obenchain agreed 
to return to work on January 17. However, he did not return to work until January 19 and
did not notify his employer that he would be absent on January 17 or 18. Obenchain, 
instead, assumed his absence was permitted because work was slow and he was told to 
take all the time he needed. Obenchain’s employment was terminated on January 19 
because he was a no call/no show for two consecutive days. 

Obenchain subsequently sought and received unemployment insurance benefits. 
McAlvain protested Obenchain’s eligibility. The appeals examiner at the Idaho 
Department of Commerce & Labor then denied Obenchain’s claim because it found that 
he was discharged for misconduct. Obenchain was informed that he had fourteen days to 
appeal this decision to the Commission. However, his appeal was postmarked one day 
after the allotted time period and, consequently, the Commission dismissed his appeal. 
Obenchain sought reconsideration, explaining that his appeal was untimely because his 
employer refused to provide him with his employee file. The Commission denied 
reconsideration because it found that Obenchain failed to provide a legal justification for 
his untimely appeal. This appeal followed.

II. 

This Court exercises free review over the Industrial Commission's legal 
conclusions. Neihart v. Universal Jt. Auto Parts, Inc., 141 Idaho 801, 803, 118 P.3d 133, 
135 (2005). However, the Commission's factual findings will not be disturbed on appeal 
so long as they are supported by substantial and competent evidence. I.C. § 72-732; 
Neihart, 141 Idaho at 803, 118 P.3d at 135.

III. 

Obenchain argues that because his appeal was postmarked incorrectly, the 
Commission erred in dismissing it as untimely. This argument is unavailing because it is 
raised for the first time on appeal. 

Idaho Code section 72-1368(6) allows an interested party to appeal an appeals 
examiner’s decision within fourteen days after service of that decision. A mailed appeal 
is “deemed as filed on the date of mailing as determined by the postmark on the 
envelope.” IDAPA 09.01.06.012.03. If filed after the final day of appeal, the appeal is 
untimely and will be denied. However, an appeal will be considered timely if the party 
the envelope would have been postmarked within the period for timely appeal.” Id.; 
Moore v. Melaleuca, Inc., 137 Idaho 23, 43 P.3d 782 (2002). However, to establish the 
mailing error one must raise it. 

In the current case, Obenchain was served with the appeals examiner’s decision 
on April 28 and had until 5:00 p.m. on May 12 to file his appeal with the Commission. 
However, his appeal was postmarked May 13. The Commission denied the appeal 
because it was untimely. On his motion for reconsideration, Obenchain failed to argue a 
defect in the postmark. Instead, Obenchain argued that his appeal was untimely because 
his employer failed to provide him with his employment file. This was not a legal 
justification for his untimely appeal. Therefore, the Commission denied reconsideration. 
Appellate court review is “limited to the evidence, theories and arguments that 
were presented … below.” State v. Vierra, 125 Idaho 465, 469, 872 P.2d 728, 731 (Idaho 
App. 1994). Consequently, appellate courts will not consider new arguments raised for 
the first time on appeal. Dominguez ex rel. Hamp v. Evergreen Resources, Inc., 142 
Idaho 7, 14, 121 P.3d 938, 945 (2005). Obenchain argues for the first time on appeal to 
this Court that his untimely appeal was the result of postal error. We cannot consider this 
argument because it was not presented to the Commission. As a result, the Commission’s 
decision to deny reconsideration is affirmed because Obenchain failed to provide a legal 
justification for his untimely appeal. 

IV. 

We affirm the Industrial Commission’s decision that Obenchain’s appeal was 
untimely. 

Chief Justice SCHROEDER, and Justices TROUT, EISMANN and BURDICK 
CONCUR.