Craig

NOT FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL K. BONNELL JEFFREY A. MODISETT
Bloomington, Indiana Attorney General of Indiana

             ANDREW L. HEDGES
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

BARBARA CRAIG,                 )
                                    )
    Appellant,                      )
                                    )
        vs.                         )    No. 93A02-9610-EX-628
                                    )
REVIEW BOARD OF THE DEPARTMENT      )
OF WORKFORCE DEVELOPMENT,           )
                                    )
    Appellee.                       )

APPEAL FROM THE REVIEW BOARD OF THE
DEPARTMENT OF WORKFORCE DEVELOPMENT
Case No. 96-TAA-31

September 15, 1997

This is a memorandum decision. Pursuant to Appellate Rule 15, this memorandum decision shall not be regarded as precedent nor cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case.

RILEY, Judge

STATEMENT OF THE CASE
    Claimant-Appellant Barbara Craig appeals a determination by the Review Board of the Department of Workforce Development ("the Review Board").
    We reverse and remand.
ISSUE
    The following issue is dispositive: whether the administrative law judge breached his duty to ensure that Craig fully presented her case.
FACTS AND PROCEDURAL HISTORY
    Craig was employed at Thomson Consumer Electronics as a "light assembly worker" from July 7, 1965, until January 20, 1995. After she left Thomson, Craig applied for a trade readjustment allowance under the Trade Act of 1974. The Trade Act is a federal program providing for extra unemployment benefits to assist displaced workers in receiving skills training. 19 U.S.C. § 2271 et seq.
    On April 4, 1996, a deputy of the Indiana Department of Workforce Development (the Department) determined that Craig's separation from Thomson was voluntary. The deputy further determined that Craig did not meet the Trade Act's requirement because she was not a displaced worker. The deputy denied Craig's application
    Craig appealed the deputy's determination and received a hearing before an administrative law judge. The administrative law judge denied Craig's application on the grounds that Craig did not establish that she met the following requirements of the Trade

Act: (1) employment for at least twenty-six weeks in the year before leaving work; (2) exhaustion of all rights to unemployment insurance; (3) disqualification from receiving Federal-State extended unemployment benefits; and (4) enrollment in training or waiver of training.
Craig appealed the administrative law judge's determination to the Review Board. The Review Board affirmed the administrative law judge's determination. Craig now appeals.

DISCUSSION AND DECISION
Craig was not represented by counsel at the hearing before the administrative law judge. Where a party appears without representation, a Department regulation requires a procedural safeguard. The regulation provides that when a party appears without representation, "it shall be the duty of the administrative law judge to examine the party's witnesses, and to cross-examine all witnesses of the other party, in order to ensure complete presentation of the case." 646 I.A.C. 3-12-3(b).
The administrative law judge's duty is difficult to define and to measure on review. Our supreme court has held that "[w]e cannot and should not expect that in each and every instance, the [administrative law judge], who first must bear the administrative burden of conducting the hearing, will also immediately grasp the factual nuances particular to each and every claim and fully develop the facts relevant thereto." Berzins v. Review Bd. of Indiana Employment Sec. Div., 439 N.E.2d 1121, 1124 (Ind. 1982). However, it is clear that the administrative law judge must "sufficiently develop the facts and issues to allow for a

reasonable disposition of the claim." Jones v. Review Bd. of Indiana Dept. of Employment and Training Services, 583 N.E.2d 196, 200 (Ind. Ct. App. 1991). Although it does not happen often, we have held that an individual conducting a hearing for the Department has failed to fulfill his or her duty. See Thomas v. Review Bd. of the Dept. of Employment and Training Services, 543 N.E.2d 397, 400 (Ind. Ct. App. 1989) (holding that the Department's referee failed in her duty to ensure that the claimant received his due process right to a complete presentation of his case when she did not "inquire and develop" the claimant's position); Flick v. Review Bd. of the Indiana Employment Sec. Div., 443 N.E.2d 84, 86 (Ind. Ct. App. 1982) (holding that the Department's referee did not perform his duty when he "left too many pertinent questions unanswered and too many ambiguities unexplained"); Sotak v. Review Bd. of the Indiana Employment Sec. Div., 422 N.E.2d 445, 448 (Ind. Ct. App. 1981) (holding that the Department's referee failed to discharge his duty when he failed to explore issues in any detail, thus leaving an "anemic" record); Russell v. Review Bd. of the Indiana Employment Sec. Div., 415 N.E.2d 774, 777 (Ind. Ct. App. 1981) (holding that a review of the hearing transcript led to the conclusion that the Department's referee failed to fulfill his duty where the questions posed were "disorganized and vague" and the referee was satisfied with the "unresponsive or unintelligible answers" to pertinent questions). In the present case, Craig testified in her own behalf. She also attempted to cross- examine the Department's witnesses. The deputy who made the initial determination in this matter testified for the Department, along with Kate Liszewski. The transcript reveals that neither Craig nor the deputy knew what was required of them. The administrative law judge

did intervene to ask Craig a question about her employment during the year proceeding the termination of her employment with Thomson, but by the time the question was asked Craig was completely confused. Accordingly, her answer to the question was almost unintelligible and reveals only that she was off part of the year because of injury. The administrative law judge did not ask Craig any questions pertaining to the remaining technical provisions of the Trade Act which formed the bases for the administrative law judge's determination.
    Liszewski testified about Thomson's layoff policy. Neither the deputy nor the administrative law judge inquired as to Liszewski's position with Thomson. However, from her answers we can ascertain that she had knowledge of personnel matters. Therefore, she presumably knew Craig's employment status in the year preceding Craig's termination of employment with Thomson. The administrative law judge did not ask Liszewski about this status. In fact, the administrative law judge made no inquiry at all.
    In relying on Craig's unintelligible answer to his question and in failing to develop Craig's position as it pertained to the technical requirements of the Trade Act, the administrative law judge failed to fulfill his duty to ensure the complete presentation of Craig's case. It is not unreasonable to expect an administrative law judge to at least conduct a basic inquiry about the factors he deems to be pertinent to his determination.
    The Department argues that fulfillment of the administrative law judge's duty is illustrated by the fact that (1) he conducted a direct examination of Craig; (2) he intervened in Craig's behalf during examination of the Department's witnesses; and (3) he conducted an hour-long hearing. First, we note that the record reveals that the administrative law

judge's direct examination of Craig fails to address the factors pertinent to his ultimate determination. Second, we note that the record reveals that the administrative law judge's intervention was more a belated attempt to put an end to the deputy's excruciatingly repetitive comments than an attempt to ensure the complete presentation of Craig's case. Finally, we note that "[t]he necessary issues and facts to the case--not just the length of the hearing--determine whether a presentation is adequate." Richey v. Review Bd. of the Indiana Employment Sec. Div., 480 N.E.2d 968, 971 (Ind. Ct. App. 1985).

CONCLUSION
The administrative law judge failed to ensure the complete presentation of Craig's case. Therefore, we reverse and remand for a new hearing.
Reversed and remanded.
DARDEN, J., and RUCKER, J., concur.

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