Glenn A. Hutchinson 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, and the plaintiff Glen Hutchinson.

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.

In the recent case of Gary A. Chicatell v. Administrator Unemployment Compensation, decided August 20, 2013, the Appellate Court stated the following:  “[T]he court may not substitute its own conclusions for those of the administrative board ․” (Internal quotation marks omitted.)  Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 274, 22 A.3d 675 (2011).   Further, it bears repeating that “[i]n the absence of a motion to correct the findings of the board, the 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.”  (Internal quotation marks omitted.)  Id., 275, citing Practice Book § 22–9(a).   So that even if this court were to disagree with the result, it is limited in its review.

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 issue, therefore, is whether the decision of the Board of Review was unreasonable, arbitrary or illegal in determining that the claimant was ineligible to receive benefits because he voluntarily left employment without good cause attributable to the employer.

As the Board of Review found:

Preliminarily, we must make a determination of whether the claimant is eligible for benefits based upon the facts of the case and the provisions of the Connecticut Unemployment Compensation Act. We cannot award benefits simply because the employer allegedly consented to its former employee's receiving those benefits, which are funded primarily through taxes paid by employers, including the subject employer.   The ultimate decision as to the claimant's eligibility for benefits is within the exclusive authority of the adjudicator.   See Menna v. Administrator, Unemployment Compensation Act et al., Superior Court, judicial district of Waterbury, Docket No. 064294 (April 22, 1985).   Therefore, we decline to support the record with the claimant's new evidence since it would not alter the result in this case.   See Regs., Conn. State Agencies § 31–237g–35.

Our independent review of the record, including the recording of the referee's hearing, reveals that the claimant was permitted to testify and present documentation concerning his decision to voluntarily leave his employment.   The claimant fails to identify any specific information which the referee did not allow him to present.   Further, it was the claimant's responsibility to take the appropriate steps to secure any witnesses or documents necessary to establish that he left work with good cause attributable to the employer.   See Penque v. United Advertising Corp., Board Case No. 1137–BR–77 (4/13/78) (in voluntary leaving case, the claimant has the burden of proving that he had good cause attributable to the employer to leave the job).   There is no evidence that the claimant requested that the appeals division issue a subpoena to secure the presence of witnesses or documents, or that he requested a continuance of the referee's June 18, 2012 hearing upon learning that the employer would not be in attendance.

Having reviewed the claimant's motion we conclude that he has failed to show that the ends of justice require us to reopen our decision;  The motion to reopen is denied.

Accordingly, we adopt the referee's findings of fact and decision.

Board of Review Decision, Claimant's Motion to Reopen (February 1, 2013 at 1–2 (Rec. at 96–97).

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 is correct.

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

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

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