SECOND DIVISION MILLER, P. J., MARKLE and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 24, 2024
In the Court of Appeals of Georgia A24A0144. WEXLER v. BRUCE THOMPSON, COMMISSIONER OF THE GEORGIA DEPARTMENT OF LABOR.
LAND, Judge.
After leaving his job as an attorney to take care of his children during the
COVID-19 pandemic, appellant Shimshon Wexler applied for Georgia unemployment
benefits. When the Georgia Department of Labor denied his claim, Wexler applied for
Pandemic Unemployment Assistance (PUA) under 15 U.S.C. § 9021 (a), but the
hearing officer denied the claim on the ground that Wexler did not work during the
pandemic. We granted Wexler’s application for discretionary appeal from the Review
Board and the superior court’s affirmances of this holding. Wexler now argues that
the Department’s findings were clearly erroneous. We agree and reverse. “Judicial review of an administrative decision requires the court to determine
that the findings of fact are supported by ‘any evidence’ and to examine the soundness
of the conclusions of law that are based upon the findings of fact.” Pruitt Corp. v. Ga.
Dept. of Community Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008), quoting
OCGA § 50-13-19 (h); see also Swarn v. Thompson, 369 Ga. App. 321, 322 (893 SE2d
474) (2023) (legal conclusions are reviewed de novo).
We note at the outset that the Commissioner of Labor has notified this Court
that it “has decided not to submit a brief” in this case. In the absence of such a brief,
we are entitled to assume that the Commissioner is “satisfied with [Wexler’s]
presentation” of the case, including the “material facts relevant to the appeal.” Court
of Appeals Rule 25 (a) (5) and (b). Although we construe the record in favor of the
Review Board and superior court’s factual determinations, the Department’s decision
not to file a brief means that we accept Wexler’s statement of material facts as
undisputed. Id. We thus consider only whether the administrative agency’s
conclusions “are supported by any evidence,” Pruitt Corp., 284 Ga. at 161 (3) – that
is, whether they are “[c]learly erroneous in view of the reliable, probative, and
substantial evidence on the whole record[.]” OCGA § 50-13-19 (h) (5).
2 So viewed, the record shows that at the administrative hearing, Wexler testified
that he was performing legal work before and during the beginning of the COVID-19
pandemic. Wexler testified that he continued working until Friday, March 13, 2020,
after which he became the primary caregiver for two of his three children, who were
four and six years old and whose school was then closed. Wexler’s wife is a
pediatrician whose work took her away from the home. The hearing officer accepted
Wexler’s testimony, concluding that he “last worked on or about March 13, 2020,”
but denied his appeal from the denial of PUA benefits because he had “last worked
prior to the pandemic.” The hearing officer based this conclusion on the fact that
Wexler was last paid by a legal client on January 16, 2020, which was “before the
pandemic effective date of January 27, 2020.”
Wexler appealed the hearing officer’s decision to the Review Board, which held
a hearing. There, Wexler again testified that he had stopped working on March 13,
2020, and provided bank records showing court filing fees throughout January and
February 2020, a transaction with the State Bar of Georgia on February 12, and a
transaction to view federal court records on February 27. Wexler again explained that
he became the primary caregiver for his children after March 13 and described his
3 attempt to participate in a hearing from home as they demanded his attention, which
he described as a “total disaster” for which he was reprimanded.
Despite this undisputed evidence, the Review Board adopted the officer’s
findings and affirmed the denial of PUA benefits, finding that Wexler had “provided
no evidence to show that he was performing work prior to March 8, 2020, and that his
unemployment is a result of the pandemic.” The Review Board also found that
Wexler had “provided no evidence to show that he is the sole caregiver for his
children.” Wexler appealed to the superior court, which held a hearing (at which the
Department did not appear) and summarily affirmed the Review Board. We granted
Wexler’s application for discretionary review of these decisions.
On appeal, Wexler again argues that the Department’s determination that he
did not cease working as a result of the COVID-19 pandemic was not supported by the
evidence and was thus clearly erroneous. We agree.
At the time of Wexler’s application for PUA, federal law defined a “covered
individual” as a person who meets two requirements: being ineligible for regular
unemployment compensation; and being “unemployed, partially unemployed, or
unable and unavailable to work because” of circumstances including that “a child . .
4 . for which the individual has primary caregiving responsibility is unable to attend
school” as a result of the pandemic. (Emphasis supplied.) 15 U.S.C. § 9021 (a) (3) (A)
(i), (ii) (I) and (dd). A party seeking benefits may prove these requirements by means
of “self-certification.” Id. at (a) (3) (A) (ii). And the United States Department of
Labor issued guidance as to such circumstances as follows:
An individual has “primary caregiving responsibility” for a child or other person in the household if he or she is required to remain at home to care for the child or other person. This includes an individual whose job allows for telework, but for whom the provision of care to the child or other person with a closed school or other facility requires such ongoing and constant attention that it is not possible for the individual to perform work at home.
(Emphasis supplied.) United States Department of Labor Unemployment Insurance
Program Letter No. 16-20 (April 5, 2020); see also Swarn, 369 Ga. App. at 325 n. 21
(citing the July 2020 version of the same letter).
Inexplicably, the hearing officer concluded that even though Wexler “last
worked on or about March 13, 2020,” he had provided “no evidence to show that he
was performing work prior to March 8, 2020, and that his unemployment is the result
of the pandemic.” On the contrary, Wexler provided undisputed evidence, both
testimonial and documentary, that he was working as an attorney up until March 13,
5 2020, and that he stopped working to become the primary caregiver for his two young
children, whose school was no longer in session as a result of the pandemic. Wexler
also gave a specific example of the hearing incident in which he was unable to do his
job adequately because of the demands of caring for his children, thus showing that he
was required to give them his “ongoing and constant attention.” Program Letter No.
16-20.
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SECOND DIVISION MILLER, P. J., MARKLE and LAND, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 24, 2024
In the Court of Appeals of Georgia A24A0144. WEXLER v. BRUCE THOMPSON, COMMISSIONER OF THE GEORGIA DEPARTMENT OF LABOR.
LAND, Judge.
After leaving his job as an attorney to take care of his children during the
COVID-19 pandemic, appellant Shimshon Wexler applied for Georgia unemployment
benefits. When the Georgia Department of Labor denied his claim, Wexler applied for
Pandemic Unemployment Assistance (PUA) under 15 U.S.C. § 9021 (a), but the
hearing officer denied the claim on the ground that Wexler did not work during the
pandemic. We granted Wexler’s application for discretionary appeal from the Review
Board and the superior court’s affirmances of this holding. Wexler now argues that
the Department’s findings were clearly erroneous. We agree and reverse. “Judicial review of an administrative decision requires the court to determine
that the findings of fact are supported by ‘any evidence’ and to examine the soundness
of the conclusions of law that are based upon the findings of fact.” Pruitt Corp. v. Ga.
Dept. of Community Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008), quoting
OCGA § 50-13-19 (h); see also Swarn v. Thompson, 369 Ga. App. 321, 322 (893 SE2d
474) (2023) (legal conclusions are reviewed de novo).
We note at the outset that the Commissioner of Labor has notified this Court
that it “has decided not to submit a brief” in this case. In the absence of such a brief,
we are entitled to assume that the Commissioner is “satisfied with [Wexler’s]
presentation” of the case, including the “material facts relevant to the appeal.” Court
of Appeals Rule 25 (a) (5) and (b). Although we construe the record in favor of the
Review Board and superior court’s factual determinations, the Department’s decision
not to file a brief means that we accept Wexler’s statement of material facts as
undisputed. Id. We thus consider only whether the administrative agency’s
conclusions “are supported by any evidence,” Pruitt Corp., 284 Ga. at 161 (3) – that
is, whether they are “[c]learly erroneous in view of the reliable, probative, and
substantial evidence on the whole record[.]” OCGA § 50-13-19 (h) (5).
2 So viewed, the record shows that at the administrative hearing, Wexler testified
that he was performing legal work before and during the beginning of the COVID-19
pandemic. Wexler testified that he continued working until Friday, March 13, 2020,
after which he became the primary caregiver for two of his three children, who were
four and six years old and whose school was then closed. Wexler’s wife is a
pediatrician whose work took her away from the home. The hearing officer accepted
Wexler’s testimony, concluding that he “last worked on or about March 13, 2020,”
but denied his appeal from the denial of PUA benefits because he had “last worked
prior to the pandemic.” The hearing officer based this conclusion on the fact that
Wexler was last paid by a legal client on January 16, 2020, which was “before the
pandemic effective date of January 27, 2020.”
Wexler appealed the hearing officer’s decision to the Review Board, which held
a hearing. There, Wexler again testified that he had stopped working on March 13,
2020, and provided bank records showing court filing fees throughout January and
February 2020, a transaction with the State Bar of Georgia on February 12, and a
transaction to view federal court records on February 27. Wexler again explained that
he became the primary caregiver for his children after March 13 and described his
3 attempt to participate in a hearing from home as they demanded his attention, which
he described as a “total disaster” for which he was reprimanded.
Despite this undisputed evidence, the Review Board adopted the officer’s
findings and affirmed the denial of PUA benefits, finding that Wexler had “provided
no evidence to show that he was performing work prior to March 8, 2020, and that his
unemployment is a result of the pandemic.” The Review Board also found that
Wexler had “provided no evidence to show that he is the sole caregiver for his
children.” Wexler appealed to the superior court, which held a hearing (at which the
Department did not appear) and summarily affirmed the Review Board. We granted
Wexler’s application for discretionary review of these decisions.
On appeal, Wexler again argues that the Department’s determination that he
did not cease working as a result of the COVID-19 pandemic was not supported by the
evidence and was thus clearly erroneous. We agree.
At the time of Wexler’s application for PUA, federal law defined a “covered
individual” as a person who meets two requirements: being ineligible for regular
unemployment compensation; and being “unemployed, partially unemployed, or
unable and unavailable to work because” of circumstances including that “a child . .
4 . for which the individual has primary caregiving responsibility is unable to attend
school” as a result of the pandemic. (Emphasis supplied.) 15 U.S.C. § 9021 (a) (3) (A)
(i), (ii) (I) and (dd). A party seeking benefits may prove these requirements by means
of “self-certification.” Id. at (a) (3) (A) (ii). And the United States Department of
Labor issued guidance as to such circumstances as follows:
An individual has “primary caregiving responsibility” for a child or other person in the household if he or she is required to remain at home to care for the child or other person. This includes an individual whose job allows for telework, but for whom the provision of care to the child or other person with a closed school or other facility requires such ongoing and constant attention that it is not possible for the individual to perform work at home.
(Emphasis supplied.) United States Department of Labor Unemployment Insurance
Program Letter No. 16-20 (April 5, 2020); see also Swarn, 369 Ga. App. at 325 n. 21
(citing the July 2020 version of the same letter).
Inexplicably, the hearing officer concluded that even though Wexler “last
worked on or about March 13, 2020,” he had provided “no evidence to show that he
was performing work prior to March 8, 2020, and that his unemployment is the result
of the pandemic.” On the contrary, Wexler provided undisputed evidence, both
testimonial and documentary, that he was working as an attorney up until March 13,
5 2020, and that he stopped working to become the primary caregiver for his two young
children, whose school was no longer in session as a result of the pandemic. Wexler
also gave a specific example of the hearing incident in which he was unable to do his
job adequately because of the demands of caring for his children, thus showing that he
was required to give them his “ongoing and constant attention.” Program Letter No.
16-20.
The hearing officer was also unjustified in suggesting that Wexler was required
to prove that he was the “sole” caregiver when the statute provides relief for a
“primary” caregiver, which he was for two of his three children as his wife’s job had
her working outside the home. Equally unjustified was the conclusion that Wexler
stopped working at the time he received his last contingency fee from a client. We
should not have to explain that payment for an attorney’s services may come, if at all,
well after work on the matter has been performed and that the last payment date does
not equate with the last date an attorney performed legal work. Finally, no part of the
record indicates that the hearing officer doubted the credibility of Wexler’s testimony,
which was supported by documentary evidence. See Swarn, 369 Ga. App. at 326.
6 On this record, then, Wexler qualified for PUA benefits under 15 U.S.C. § 9021
(a) (3) (A), having stopped work as a result of the pandemic. The hearing officer, the
Review Board, and the superior court thus clearly erred when they reached a contrary
conclusion. See Swarn, 369 Ga. App. at 326 (applicant’s uncontested evidence,
including her testimony that she stopped working as a childcare provider and
translator due in part to her fear of contracting COVID given her underlying health
conditions, was sufficient to show that the superior court’s finding to the contrary was
clearly erroneous); Hudson v. Butler, 337 Ga. App. 207, 209 (786 SE2d 879) (2016)
(“courts should liberally construe the provisions of the unemployment statutes in
favor of the employee”). We therefore reverse the superior court’s affirmance of the
Board’s decision and direct it to remand the case to the Board in order to calculate the
amount due to Wexler.
Judgment reversed and case remanded with direction. Miller, P. J., and Markle, J.,
concur.