Tina Boutilier v. Administrator of Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

This is an appeal from a decision of the employment security board of review (board) affirming the denial of the plaintiff's application for unemployment benefits.   For the reasons stated, the appeal must be dismissed.

The plaintiff, Tina Boutilier, is a certified public school teacher who applied for benefits on April 11, 2010, after giving birth by Cesarian Section on April 9, 2010.   The administrator determined that she was ineligible for benefits and determined that she had received $3,053 to which she was not entitled for the period from April 11, 2010 to May 22, 2010.   The plaintiff appealed to the appeals referee who conducted a de novo hearing, made findings and affirmed the administrator's decision, finding the plaintiff ineligible for benefits.   The appeals referee determined that the plaintiff was not physically able to work and was not available for work or making reasonable efforts to work from April 11, 2010 to May 22, 2010.   Therefore, the appeals referee found that the plaintiff was ineligible for benefits pursuant to C.G.S. § 31–235(a)(2).¹  The plaintiff appealed to the board of review which adopted the factual findings of the referee and affirmed the referee's decision dismissing the plaintiff's appeal.   The plaintiff has now appealed to this court.

The plaintiff argues that the referee and the board both made an error of law by disregarding the medical opinion of the plaintiff's doctor, Deborah Hoffman, M.D., that the plaintiff was physically able to work as of April 14, 2010.   The referee found:  “The referee finds that Dr. Hoffman's releasing the claimant to work as a teacher five days after she gave birth by Cesarian Section does not accord with reason and common sense.”   The plaintiff attempts to characterize this as an error of law rather than of fact.   The plaintiff is unable to attack the finding as one of fact because the plaintiff never filed a motion to correct the factual findings of the board.²  Therefore, the plaintiff is unable to challenge the findings of the board on appeal;  the court may not even review the evidence in the record.  J.S.F. Promotions, Inc. v. Administrator, 265 Conn. 413, 422–23 (2003);  Chavez v. Administrator, Unemployment Compensation Act, 44 Conn.App. 105 (1997);  Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779 (1996).

The rule is different with respect to challenges to the board's application of the law.  “If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably have followed from such facts.   Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.”  (Citations omitted.)  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381 (1988).

The plaintiff's argument in this regard is simple and direct:  “The Administrator has in fact not provided this Trial Court with any statute, regulation or case law that authorizes the Administrator to overrule the doctor's medical clearance of the claimant to work ․ The Administrator misunderstands questions of fact from questions of law.   There are no facts to correct.   There was NO Evidence that the Claimant was unable to work.   The Administrator's position is that it can formulate its own medical opinions.   Again, the Administrator does not provide a basis in any statute, regulation or case law authorizing the Administrator to overrule the doctor's medical clearance.”

Despite this valiant effort to characterize her attack as one of law, it remains an attack on the factual finding of the referee.   The referee found, as a fact, that the plaintiff was not physically able to work as of April 14, 2010.   In order to attack that finding the plaintiff was required to file a motion to correct, something which she failed to do.   The court is unable look at the evidence which existed concerning the plaintiff's inability to work to determine whether it supports the referee's finding.   Therefore, the court is unable to search the record to see if there was other evidence which contradicted Dr. Hoffman's opinion and would support the referee's finding.³  The court is unable to look at the record to determine if the plaintiff is correct in her argument that:  “There is No Evidence that the Claimant was unable to work.”   By failing to file a motion to correct, the plaintiff has tied the court's hands.

The same analysis applies to the alternative finding of the referee and board that the plaintiff had not made reasonable efforts to work from April 11, 2010 to May 22, 2010.   By failing to file a motion to correct, the plaintiff has made it impossible for the court to review the record to evaluate whether the finding has support in the record.

The appeal is dismissed.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. C.G.S. Sec. 31–235(a)(2) provides, in relevant part, that:  “An unemployed individual shall be eligible to receive benefits with respect to any week if it has been found that ․ such individual is physically and mentally able to work and is available to work and has been making reasonable efforts to obtain work ․”.  FN1. C.G.S. Sec. 31–235(a)(2) provides, in relevant part, that:  “An unemployed individual shall be eligible to receive benefits with respect to any week if it has been found that ․ such individual is physically and mentally able to work and is available to work and has been making reasonable efforts to obtain work ․”

FN2. “Practice Book Sec. 515A provides the mechanism for the correction of the board's findings.   If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”  Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 784 (1996)..  FN2. “Practice Book Sec. 515A provides the mechanism for the correction of the board's findings.   If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”  Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 784 (1996).

FN3. “The insistence on the filing of a motion to correct is not a mere matter of vocabulary.   A motion to correct requires the filing of, among other things, ‘such portions of the evidence as [the appellant] deems relevant and material to the corrections asked for, certified by the stenographer who took it ․’ Practice Book Sec. 22–4.   A motion to correct, therefore, with the appropriate attachments, triggers the process of presenting factual issues in an orderly manner.”  Belica v. Admin., Unemployment Act, 126 Conn.App. 779, note 9 (2011)..  FN3. “The insistence on the filing of a motion to correct is not a mere matter of vocabulary.   A motion to correct requires the filing of, among other things, ‘such portions of the evidence as [the appellant] deems relevant and material to the corrections asked for, certified by the stenographer who took it ․’ Practice Book Sec. 22–4.   A motion to correct, therefore, with the appropriate attachments, triggers the process of presenting factual issues in an orderly manner.”  Belica v. Admin., Unemployment Act, 126 Conn.App. 779, note 9 (2011).

Pickard, John W., J.