Wolfe v. Review Board of Indiana Employment Security Division , 176 Ind. App. 287 ( 1978 )

CONCURRING

HOFFMAN, J.

I concur only in the result that this cause should be reversed.

Employment Security Division Regulation 802 provides in pertinent part:

“Form 501, ‘Eligibility Information Return,’ shall be submitted to the claim-holding local office within ten (10) calendar days from the mailing of a notice that a former employee has failed an initial . . . claim . . . ;

11 If the ‘Eligibility Information Report, ’ Form 501, is not received by the Division it will be deemed that the individual involved was separated because no work was available and his leaving work was for good cause in connection with the work.” (Emphasis added).

The former employer did not return Form 501 within the time limit of 10 days.

The Review Board does not have discretion to disregard its own regulations.

Davidson v. Review Board of Indiana Emp. Sec. Div. (1974), 160 Ind. App. 221, 311 N.E.2d 472.

When the former employer failed to file Form 501 within the time limit as provided in Regulation 802, the deputy must find that the claimant was separated because no work was available and his leaving work was for good cause and award benefits accordingly. The former employer has the right of appeal pursuant to the regulations.

Therefore the claimant was entitled to benefits until the Appeals Referee made an adverse decision.

The Review Board’s contention that the regulations are not applicable because of the special provisions of the Emergency Jobs and Unemployment Assistance Act of 1974, Public Law 93-567 (SUA), is discussed and correctly decided in footnote #5 of Judge Staton’s opinion.

Therefore I would reverse the award for the above reason.

Judge Staton’s opinion holds that the Board failed to find facts sufficient to uphold its decision.¹ The facts found by the Board were sufficient.

It is admitted by both parties that the claimant left his employment voluntarily. Thus the issue before the Board is:

(1) Why did the employee leave his employment?

(2) Is such reason good cause within the meaning of the Act?

The Review Board in its decision stated the following facts:

“STATEMENT OF FACTS: The evidence of record indicates that claimant worked for this employer as a fuel oil truck driver from March 24, 1976, until October 18,1976; and that he left his employment voluntarily without advance notice to the employer. The conflicting evidence of record indicates that claimant left his employment because he felt that the employer had breached the agreement of hire by requiring him to perform duties outside the scope of his employment without extra compensation.

“The employer representative testified that he did not require the claimant to work more hours than agreed; and that claimant performed duties outside the scope of his job description when he volunteered to do such work.

“FINDINGS AND CONCLUSIONS: The Review Board now, by reference, adopts the findings and conclusions made by the referee in Case No. 77-SUA-43 in the decision mailed January 27, 1977.” (emphasis added)

The referee’s findings state:

“The claimant now relies on duties he performed voluntarily to support his contention that he left his employment for good cause. The referee finds that these reasons represent a personal dissatisfaction with the work, and while perhaps substantial and compelling reasons for leaving his employment do not constitute good cause in connection with the work within the meaning of the Act. In regards to the factual dispute as to the number of days per week claimant was required to work, the referee concludes from the testimony of both parties that the arrangement was somewhat flexible.”

Thus the Board found that the claimant left his employment because he performed duties voluntarily and was dissatisfied with his employment.

This was all that the Board was required to find; the reason claimant left his employment.

The Board was not required to state in its findings why the claimant did not leave his employment.

It then answered the next issue and correctly found that claimant’s reason was not good cause under the Act.

Here the Board made an affirmative finding when it determined the reason claimant left his employment. Such excluded any possibility of recovery.

Judge Staton’s opinion would require administrative agencies to do more than is required by trial courts when findings are required. Only one standard should apply whether it be a trial court or an administrative agency.

Judge Staton’s opinion raises the case of Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and states “that where a claimant seeks benefits which are meted out by an administrative agency, the agency must at least inform the claimant why he is being denied those benefits.”

The Board’s findings clearly inform the claimant why he is not entitled to benefits. A reading of the Board’s decision leaves no doubt in anyone’s mind why benefits were denied. Goldberg v. Kelly, supra requires no more.

The Board’s findings are sufficient and meet the requirement of the statutes and case law.

NOTE — Reported at 375 N.E.2d 652.

1 . That opinion relies heavily upon Transport Motor Express, Inc. v. Smith (1972), 289 N.E.2d 737, an opinion of the Indiana Court of Appeals in which transfer was granted by the Indiana Supreme Court, 262 Ind. 41, 311 N.E.2d 424. Such opinions have no precedential value and do not appear in the official reports of Indiana cases.