Lewis v. Review Bd. of Indiana Employment Sec. Division

Decision Date30 May 1972
Docket NumberNo. 2,No. 1171A224,1171A224,2
PartiesMark LEWIS, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees
CourtIndiana Appellate Court
Evan Dee Goodman, Indianapolis, for appellant

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellees.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--Review is sought from a decision by the Review Board of the Indiana Employment Security Division (the Review Board) denying claimant-appellant Mark Lewis's (Lewis) benefits because he voluntarily left employment with good cause not attributable to the employer.

Lewis is married and 66 years of age. For five years prior to December 24, 1970, he was employed by the Broadway Tobacco Company (Broadway) in East Chicago, Indiana. In September of 1970, Lewis sold Lewis's last day at work for Broadway was December 24, 1970. He was neither discharged nor laid off. Moreover, he did not inform Broadway that December 24 was his last day of work. Near the end of December, Lewis completed his move to Chicago and never returned to work for Broadway.

his home in East Chicago and made plans to move to Chicago, Illinois at the end of the year. His plans to relocate were motivated by his failing eyesight and a desire to be with his children before he became totally blind.

On February 5, 1971, Lewis applied to the State of Indiana for unemployment compensation. His claim was denied, and thereafter Lewis requested and was granted a hearing before an appeals referee, Mr. D. Colombatto (Colombatto). During the hearing Lewis stated that because his failing eyesight prevented him from driving a car, he did not return to work with Broadway and he felt that Broadway should have approached him regarding commuting arrangements and his continued employment.

Colombatto interrupted Lewis's testimony on several occasions. The following are portions of the transcript taken from Lewis's testimony and are examples of the interruptions to which Lewis objects as being a denial of due process:

'Q. Now, did you ever work for them after you moved to Chicago?

A. No.

Q. Why not?

A. Because they never approached me, and I don't think they needed me.

Q. What do you mean they didn't approach you?

A. Because I was entitled to the courtesy of that.

Q. Why?

A. I'll tell you why, because . . .

Q. You were working there, did they, they didn't tell you you had to stop working did they?

A. Just a minute. To a certain degree they felt obligated to us, I'll tell you why. You see, is it all right to talk about this? They had a fire which very nearly put them out of business, we were also in business in competition.

A. They felt obligated. First of all, my vision was becoming very bad, I was becoming partially blind, I know I was, I went to my old clinic . . .

Q. Well, I'm sorry, you see I don't need all this, you've made your point, you feel they should have to come to get you, is that right?

A. Right.

Q. Well, did you ever give them notice that you were leaving the job?

A. No.

Q. You didn't give them notice?

A. No.

Q. I see, all right then . . .

A. Excuse me, can I say a word or two?

Q. What for the question. * * *

Q. Now just add now, say what you want to that and then I'm going to close the hearing, because that's all we need.

A. I would like to add something to this, you see . . .

Q. Well now just a ninute, remember what I said, you have to show that the cause for leaving was attributable to the employer.

A. Yes, absolutely, because I feel, I felt that they should have approached me, they had all September, they had all of October . . .

Q. If they had asked you to stay, would you have stayed?

A. Yes, because they could have made a certain agreement, they could have picked me up at the South Shore Station at East Chicago, Indiana and said we'll pick you up, if they thought they needed me, because they felt, now I'm going to add a few more words . . .

Q. No, no . . .

A. They felt, this was a Godsend as far as they were concerned, because you see . . .

Q. In other words you feel they should have made it clear to you that they'd pick you up or something?

A. Right, I was entitled to that.

Q. Because of the . . .

A. Because of the distance, I don't drive any vision is impaired, I have very poor vision and I have no vision in the left eye from diabetes.'

On September 9, 1971, the record of the previous proceedings was reviewed by the Review Board of the Indiana Employment Security Division (the Review Board). On that date the Review Board found, among other things, that: Lewis voluntarily terminated his employment with Broadway without notice and did not contact Broadway thereafter; there was no evidence to show that Lewis's job was in jeopardy or that he had prospects for other employment; and that, although Lewis left his employment voluntarily with good cause, his separation was not attributable to Broadway within the meaning of the Employment Security Act. The Review Board then affirmed the denial of Lewis's claim.

Lewis now seeks judicial review of the Review Board's decision.

ISSUES

ISSUE ONE. Did the interruptions of Lewis's testimony by Colombatto deny Lewis due process of law?

ISSUE TWO. Was the Review Board correct in finding that Lewis's unemployment was not attributable to Broadway?

As to ISSUE ONE, Lewis contends that he was denied due process because Colombatto's interruptions of Lewis's testimony prevented complete answers.

The Board, on the other hand, argues that the presentation of evidence is within the discretion of the referee. Consequently, Lewis was not denied due process of law.

As to ISSUE TWO, Lewis asserts that the Review Board's decision is not supported by substantial evidence that Lewis quit his job voluntarily, witout good cause.

The Board's position is that Lewis's testimony indicates that he voluntarily terminated his employment without good cause attributable to Broadway. Therefore, the Review Board's decision was supported by substantial evidence of probative value.

We pause to dispose of a preliminary issue concerning the state of the record in this case. Lewis contends that a certain letter, which Colombatto was to attach to the record, was, in fact, not made part of the record. This letter, written by Lewis, presumably further explained his reasons for terminating his employment with Broadway. Lewis argues that if this letter was considered by the Review Board, then reversible error arose since the Review Board may not consider any evidence extraneous to the record and cites Jung v. Review Bd. of Ind. Empl. Sec. Div. (1964) 136 Ind.App. 248, 199 N.E.2d 476.

In Jung, there was positive evidence that the Review Board considered in its findings and conclusions a letter extraneous to the record. In the case before us, however, there is no indication that this letter was considered by the Review Board, or that it was even sent by Colombatto to the Review Board.

In the alternative, Lewis argues that if the letter was not considered by the Review Board, then he has the right to know why it was not a part of the record of the evidence. While Ind.Ann.Stat. § 52--1542e (Burns 1964), IC 1971, 22--4--17--6 requires the Review Board to keep a full and complete record of all proceedings in connection with a disputed claim, the proper procedure to correct a defective record or to insert evidence improperly omitted is to apply to this court for certiorari pursuant to Rule AP. 15(C). Krick v. Farmers & Merchants Bank of Boswell (Ind.App.1972) 279 N.E.2d 254, 262. Having failed to take advantage of the proper procedure for the correction of defects in the record as provided by Rule AP. 15(C), no question is presented.

DECISION

ISSUE ONE--It is our opinion that Lewis was granted a fair and impartial hearing and that the interruptions of his testimony by Colombatto did not deny him due process of law.

Ind.Ann.Stat. § 52--1542e (Burns 1964) provides:

'52--1542e. Disputed claims--Procedure--Notice of hearing--Continuance.--The manner in which disputed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the board for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other teachnical rules of procedure.' (Emphasis supplied.)

Ind.Ann.Stat. § 52--1544, IC 1971, 22--4--19--1 then grants the authority to the Employment Security Board to administer the provisions of the Employment Security Act and to adopt, amend, or rescind any necesary rules and regulations specified in § 52--1542e, supra.

Pursuant to this statutory grant of power, in 1945 the Indiana Employment Security Board adopted Regulation 1003 (Indiana Administrative Rule and Regulation 52--1542b--1), which, in part, provides that:

'All hearings shall be conducted informally in order to determine the substantial rights of the parties. The parties may present such evidence as the referee deems necessary for determining the substantial rights of the parties. The parties to the appeal may appear in person, by attorney, or duly authorized agent or representative, and shall have the right to examine their own witnesses, present evidence and cross-examine witnesses of the opposing party. Any referee engaged in conducting such a hearing shall have the right to examine all witnesses and may require the parties to produce any available evidence he may deem necessary for proper determination of the case. Where either party fails to appear or where either party is not represented by an attorney or duly authorized agent, it shall be the duty of the referee to examine such party's witnesses, and to cross-examine all witnesses of the other party, in order to insure complete presentation of the case. In general, rules of evidence and procedure for the trial of civil causes shall govern proceedings before a referee or the review board, but not to such an...

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