This is a discretionary appeal brought by appellant Roger L. Holstein from the order of the superior court affirming the 2-1 decision of the Board of Review of the Georgia Department of Labor affirming the decision of the hearing officer and denying unemployment compensation benefits to appellant. Held:
1. Appellees assert this court lacks jurisdiction óf this appeal because appellant failed to file his appeal of the hearing officer’s decision, within ten days, as required by OCGA § 34-8-173. We disagree for two independent reasons.
First, we find that the-record does not contain any competent evidence establishing the exact date when the hearing officer’s decision whs mailed. ‘See generally OCGA § 34-8-173. While the record does contain some evidence, that the hearing officer’s decision was “issued” on March 3, 1988, there is absolutely no- evidence that the: decision was actually mailed on that date or that appellant was “duly notified” of the decision at this time. In fact, the record reflécts that appellant gave testimony by telephone the day before' and did not attend the hearing personally, and that the hearing officer informed appellant over the phone that he would “not today indicate one way or the other what my decision is going to be.” Mere issuance of a decision is not equivalent either to mailing or to duly notifying appellant thereof, because an opinion can be issued internally withofit being mailed and without actual notification to appellant. Moreover, if the legislature had desired to make “issuance date” father than “notification date” controlling, it would have been an easy matter tb have done so.
There being no competent evidence of record as to when the hearing officer’s decisión was actually mailed,, the critical question then becomes what dáte appellant was “duly .notified” thereof. The record reflects, without contradiction, that actual notification occurred when appellant, received' the mailed decision the! following. week, that is, not earlier than March 7, 1988. As appellant filed his notice of appeal on March 17, 1988, it was timely within the meaning of OCGA § 34-8-173.
Secondly, notwithstanding the timeliness of the appeal submitted by appellant, we find' thé Board of Review elected to and did hear the appeal on the merits. The effect of this action is a matter of first impression for this court.
In a determination óf when the decision of a hearing officer (appeals tribunal) becomes final, and the circumstances under which an appeal of such decision can be maintained, OCGA § 34-8-173 and OCGA § 34-8-172 (b), being in pari materia, must be construed to
2. OCGA § 34-8-158 (2) (B) expressly authorizes the Commissioner of Labor to promulgate certain rules and regulations to assist him in making those statutory determinations required therein. Promulgation is a formal act of official publication effected in writing. See generally Black’s Law Dictionary (5th ed.), p. 1093. Assuming without deciding that Labor Department Regulation (LDR) 300-2-9-.03 (1) (e), as currently promulgated, would be applicable in cases where an employee has quit his employment because of the aggravation of a pre-existing medical condition, we find it does not apply to the case sub judice.
LDR 300-2-9-.03 (1) (e) has an effective date of January 29, 1989, subsequent even to the date of filing of the claim in this case. In the absence of a genuine necessity existing to the contrary, administrative rules and regulations should not be amended so as to effect a retroactive change, and should not be applied retroactively in the determination of a claimant’s rights.
Cross v. Balkcom,
3. Appellees assert that the decision of the Board must be approved if there exists any evidence to sustain it.
OCGA § 34-8-176 (b) expressly provides that “[i]n any judicial proceeding under this Code section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” (Emphasis supplied.)
OCGA § 34-8-158 (1) pertinently provides that an individual shall be disqualified for benefits “after he has left his most recent
Although this court on occasion (see, e.g.,
Bulloch Academy v. Cornett,
We find that the question of whether appellant quit his job either with or without “good cause” requires a legal conclusion in this case. Review of the record before us reveals that the hearing officer found as fact, after the original hearing was reopened for good cause shown, that appellant “quit” his job, but he did not expressly find the reason for such “quitting.” He further found that appellant “did not provide medical evidence to the employer to show the work or work environment was detrimental to his health, however, he had discussions with the employer relative to his asthma and the effect the dust had on this condition.” (Emphasis supplied.)
We conclude that if appellant,
in fact,
voluntarily quit his job because the work environment caused or aggravated a pre-existing medical condition to the extent that he either was unable to perform properly his employment duties, or was unable to perform properly his employment duties without unreasonable risk of harm to his health due to continued employment, and that the employee timely notified his employer of the reason for his decision, such voluntary quitting would be with due cause
as a matter of law.
Compare
Allen v. Caldwell,
In reaching any of the above
factual
determinations, the trial court should consider that “Georgia . . . has a strong public policy favoring payment of unemployment benefits to persons unemployed through no
fault
of their own. OCGA § 34-8-2. The
burden is on the employer
urging the disqualification for benefits to show by a preponderance of evidence that the applicant for compensation comes within the [statutory exceptions of OCGA § 34-8-158].” (Second emphasis supplied.)
Millen v. Caldwell,
As the record currently fails to contain those findings of fact from which this court could determine, as a matter of law, whether appellant’s voluntary quitting of employment was with good cause, within the meaning of OCGA § 34-8-158 (1), we will remand this case for such necessary findings and for such other disposition as is not inconsistent with this opinion. In this regard, any rules or regulations duly employed in the resolution of this matter may not shift the burden of proof to claimant in disregard of the precedent of Millen, Lamb, and Dalton, supra.
Judgment reversed and case remanded with direction.