Frank Robinson, Sr. v. Administrator Unemployment Compensation Act (2011)

MEMORANDUM OF DECISION

The plaintiff, Frank Robinson, Sr., appeals from a decision of the Employment Security Board of Review (Board of Review) affirming the dismissal of his appeal from a ruling that he is liable for benefit charges to his employee.

FACTS

On November 20, 2009, the administrator granted the claimant's application for benefits and ruled the plaintiff liable for benefit charges.   The plaintiff filed a late appeal from the administrator's determination on March 22, 2010.   The appeals division scheduled a hearing for May 4, 2010, at 2:00 p.m. The plaintiff did not attend the hearing.   On May 6, 2010, the referee dismissed the plaintiff's appeal for lack of jurisdiction.   On May 11, 2010, the employer filed a timely motion to reopen the referee's decision.   On May 14, 2010, the referee withdrew his decision and granted the plaintiff's motion, conditional on a showing of good cause for failure to appear at the May 4, 2010 hearing.   The referee heard the motion to reopen on June 8, 2010.   On June 21, 2010, the referee denied the motion to reopen and reinstated his original decision to dismiss the appeal.   The plaintiff then appealed to the Board of Review on June 28, 2010.   On September 9, 2010, the Board of Review affirmed the referee's decision.   This appeal followed, pursuant to Connecticut General Statutes § 31–249b.¹

STANDARD OF REVIEW

Under General Statutes § 31–249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review.   Rather, based upon the record submitted by the parties, the court must determine whether the board could reasonably arrive at the factual findings and the conclusions of law that form the basis of the appeal.   See Finklestein v. Administrator, 192 Conn. 104, 112–13 (1984).

In the absence of a motion to correct the findings of the board, this court is not entitled to “retry the facts or hear evidence.   It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether ․ there was any evidence to support in law the conclusions reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”  Connecticut Practice Book § 22–9.

DISCUSSION

Section 31–241 of the General Statutes provides that to be timely, an appeal from a decision of the administrator must be postmarked or filed within twenty-one calendar days after the administrator's decision was mailed to the appealing party.   Unless the appealing party, pursuant to § 31–237g–15(b) of the Regulations of Connecticut State Agencies, shows good cause for filing the appeal after the twenty-first day, the administrator's decision becomes final.

Section 31–248(b) of the General Statutes provides that any decision of a referee may be reopened, set aside, vacated or modified on the timely filed motion of a party aggrieved by the decision, if the ends of justice so require, upon good cause.

Before the referee on the motion to reopen, the plaintiff testified that he did not appear on May 4, 2010, because he did not receive notice of the hearing.   The referee found that on April 21, 2010, the Hartford office of the appeals division sent notice of the May 4, 2010 hearing to the plaintiff's address of record, which is a post office box, in care of Allied Community Resources;  that the plaintiff never checked the post office box for mail and that the plaintiff did not know who handles the mail delivered to the address of record.   The referee found the plaintiff did not establish that the May 4, 2010 hearing notice was not delivered to the address of record.   The referee found the plaintiff's failure to appear was due to deficient mail handling procedures and that the plaintiff received a timely and adequate notice of the appeal hearing.   The referee concluded the plaintiff did not have good cause for failure to attend the hearing.   As a result, the referee denied the motion to reopen and reinstated his original decision dismissing the late appeal for lack of jurisdiction.

On appeal to the Board of Review, the plaintiff claimed the referee conducted an unfair hearing and was so fixated on the plaintiff's not showing up at the May 4th hearing, that the referee never got to the reason why the plaintiff should not be charged unemployment taxes.

The Board of Review reviewed the prior proceedings and, preliminarily, did not find the referee's hearing was unfair or find bias on his part.   The Board of Review concluded that the referee was required to deny the motion to reopen because the plaintiff did not show good cause for failing to appear at the May 4th hearing.   The Board of Review also found that the referee properly dismissed the plaintiff's March 22, 2010 appeal because he did not establish good cause for the untimely filing.   The Board of Review affirmed the referee's decision and dismissed the appeal.   In so doing, the Board of review adopted the referee's findings as its own.

CONCLUSION

The court has reviewed the record certified to it by the Board of Review.   The decision of the Board of Review follows reasonably from the facts found and correctly applies the law to those facts.   The decision is not arbitrary, capricious or contrary to law.   The decision is affirmed.   The appeal is dismissed.

Tanzer, J.T.R.

FOOTNOTES

FN1. The record having been filed by the Board of Review, the court ordered a briefing schedule and that the matter would be taken on the papers unless either party requested oral argument.   Defendant Administrator filed a Memorandum of Law. Neither party requested argument..  FN1. The record having been filed by the Board of Review, the court ordered a briefing schedule and that the matter would be taken on the papers unless either party requested oral argument.   Defendant Administrator filed a Memorandum of Law. Neither party requested argument.

Tanzer, Lois, J.T.R.