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Wurtz v. Bd. of Review of Dept. of Labor

OPINION FILED JUNE 30, 1978.

KEITH G. WURTZ, M.D., PLAINTIFF-APPELLANT,

v.

BOARD OF REVIEW OF ILLINOIS DEPARTMENT OF LABOR ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, a former employer of Rolando Perkins, objected to the finding of a claims adjudicator for the Illinois Department of Labor that Perkins was entitled to unemployment compensation. After a hearing at which plaintiff testified, a referee affirmed the finding of the claims adjudicator. Upon appeal to the Board of Review (Board), the referee's decision was affirmed. Plaintiff then filed a complaint for administrative review and a motion for summary judgment in the Circuit Court of Cook County. After arguments, the trial judge affirmed the decision of the Board. On appeal to this court, plaintiff contends that (1) he should not have been precluded from raising the issue of claimant's ineligibility due to voluntariness of leaving, although he did not comply with the time limit set forth in the Department of Labor's Regulation 14 B, (2) there are omissions from the record of proceedings before the administrative agency that were crucial to the circuit court's and are necessary for our determination, (3) the Board failed in its duty to investigate the competency of the referee once questions of his competence had been raised, (4) the referee's findings as to eligibility were against the manifest weight of the evidence.

We reverse and remand this cause for further proceedings.

Rolando Perkins filed a claim, effective November 2, 1975, for unemployment insurance benefits. On his application he listed his last employer as plaintiff and stated as his reason for losing his last job as "quit." Thereafter, approximately every two weeks from November 22 until January 3, 1976, Perkins filed continued claim cards stating that in the two calendar weeks which ended on the Saturday prior to filing of card, he was actively looking for work and did not refuse to accept a job offered to him. Claimant quit high school on November 6, 1975. Two days later Perkins filed a statement on voluntary leaving which listed Earl Gerbar as his last employer and gave his reason for quitting as "I was back to school." He listed his last day of work as August 29, 1975.

As disclosed by a notation on Perkins' claim record card, a notice of Perkins' possible eligibility was mailed to the last employing unit (L.E.U.), namely plaintiff, on November 10, 1975. This notice is not in the record. In a letter dated November 21, 1975, plaintiff's attorney informed the Bureau of Employment Security at the Department of Labor, that plaintiff wished to dispute claimant's eligibility.

Thereafter plaintiff's attorney received a letter from J. Beaumont, a claims adjudicator, notifying him that Perkins had stated as his reasons for leaving that he "did not want contract work." Plaintiff's attorney was further directed to complete a form on the reverse side of the letter within seven days of the "above date." As far as the record discloses, the only date on the letter is a stamp reading "Received Jan. 12, 1976, Des Plaines." Plaintiff's attorney responded that claimant gave as his reason for quitting that he was returning to school.

On January 26, 1976, Beaumont sent plaintiff's attorney notice of the claim adjudicator's determination (Form Ben-134 P) which stated as follows:

"Claimant was discharged for reasons other than misconduct in connection with his work, since no specific act of industrial misconduct has been shown.

The claimant is eligible for benefits for each week during the period from 11-2-75 through 12-27-75, and will be determined eligible for each week thereafter as long as you meet the eligibility requirements of the Illinois Unemployment Insurance Act."

At the bottom of the form the box next to the following information was checked:

"As a party entitled to notice of the claim adjudicator's determination (see reprint of Regulation 14, section B, on the other side), your attention is called to Section 800 of the Unemployment Compensation Act, which provides that `unless the claimant or any other party entitled to notice of the claim adjudicator's * * * "determination" * * * within nine (9) calendar days after such notification was mailed to his last known address, files an appeal therefrom, such "determination" shall be final, as to all parties given notice thereof.'

APPEAL RIGHTS: IF YOU DISAGREE WITH THIS DETERMINATION, You may file an appeal, in person or by mail. Your appeal must be FILED in this office within nine (9) days after the date of this notice if it was mailed to you, or within seven (7) days after the date of this notice if it was given to you. An appeal submitted by mail must bear a postmark date within the applicable time limit for filing. A LETTER WILL SUFFICE IF YOU DO NOT HAVE APPEAL FORMS."

In a letter bearing the date of February 2, 1976, entitled "NOTICE OF APPEAL," plaintiff's attorney told Beaumont of their disagreement with her determination as to claimant's eligibility since claimant left his employment voluntarily and without good cause.

On February 20, 1976, a hearing was conducted before a referee. At the outset, the referee noted that appellant filed a timely appeal from the adjudicator's determination that claimant was entitled to benefits from November 2, 1975, through December 27, 1975. The transcript reflects that both claimant and plaintiff were sworn in. ...


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