Michelle Martello v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, and has considered all of the submissions and the arguments of the Assistant Attorney General.   Michelle Martello did not appear at argument.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review not a new hearing.   The Board of Review determined that the claimant was ineligible to receive benefits because she filed a late appeal.

As the Board of Review found:

We find that the administrator's decision in this case was mailed on April 18, 2012, and that the claimant's appeal to the referee from that decision was filed on May 31, 2012, more than three weeks beyond the twenty-one day appeal period allowed by law.   The record of the referee's hearing reveals that the claimant testified that she did not receive the administrator's April 18, 2012 decision.

The referee properly found that the claimant necessarily delayed filing her appeal for two weeks once the administrator instructed the claimant on May 15, 2012, that the appeal period had expired and to file her appeal immediately.   Generally, the claimant's lack of diligence in filing an appeal after the reason for her filing late no longer exists precludes a finding of good cause for the late filing.   See Chan v. City of New Britain, Board Case No. 915–BR–88 (1/24/89), aff'd Superior Court judicial district of New Haven, Docket No. 280193 (May 1, 1989).   Therefore, even if the claimant initially failed to receive the administrator's determination, we conclude that the referee was required by law to dismiss the appeal because the claimant did not show good cause for the two-week delay in filing of her appeal once she was on notice of the adverse decision.   In so ruling, we adopt the referee's findings of fact as our own.

Board of Review Decision (November 29, 2012) at 2 (Rec. At 48).

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and the correct application of the law to those facts.   The decision is not arbitrary, capricious, or contrary to law.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 dated April 11, 2012 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.