Charles Peluso v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

I. STATEMENT OF CASE

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's attorney.

This is a statutory appeal brought by the claimant, Charles Peluso, from a determination that he was ineligible to receive unemployment benefits of $3,440.00.   The Employment Security Board of Review certified and filed with the court the record of proceeding pursuant to Conn. Gen.Stat. § 31–249b.   The record indicates that the Administrator made an initial determination that the claimant was overpaid benefits on July 30, 2012.   His employer was the Town of Greenwich.   The claimant filed a timely appeal on August 9, 2012, from the Administrator's initial determination.   The Appeals Referee affirmed the Administrator's decision with a modification of the amount of overpayment on September 14, 2012 following a de novo hearing.   The claimant filed a timely appeal of the Appeals Referee's decision to the Board of Review on October 4, 2012.  Conn. Gen.Stat. § 31–248.   The Board of Review affirmed the Appeals Referee's Decision on January 30, 2013.   Claimant then filed a timely appeal to this court.  Conn. Gen.Stat. § 31–249b.

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 overpaid unemployment benefits and is ineligible for a waiver of the amounts due the Administrator.

Regarding the statutory claim of overpaid benefits, the Board of Review found:

Preliminarily, we note that the statutory calculation involves the gross income coming into a household, composed of the combined earnings of the claimant and his or her spouse.   The statute does not make a distinction based on which spouse earned this income;  nor make an exception where the couple maintains separate bank accounts.   Instead, section 31–273–4(c) makes reference to the gross wages garnered by the family as a whole.   See Regs., Conn. States Agencies § 31–273(c).

The claimant testified that he resides primarily with his wife and child, constituting a family of three.   The record reveals that, based on the claimant's wife's annual salary, the claimant's household had a gross family income of $65,000 during the relevant period.   The claimant further testified that he did not have any extraordinary medical expenses in the six months preceding his overpayment waiver request.

Because the claimant completed his request for a waiver of his overpayment on May 22, 2012, his appeal must be evaluated using the Poverty Guidelines from 2012, effective as of March 19, 2012.   Under the 2012 Poverty Guidelines, 150% of the poverty level for a three-person household is $28,635.   While the referee utilized the 2009 Poverty Guidelines for her decision, which lists an annualized family income for a family of three as $27,465, this error does not alter her ultimate conclusion in this case.   Based on the claimant's annualized family income of $65,000, which exceed 150% of the poverty level applicable before and after March 19, 2012, he does not meet the criteria for a waiver of his overpayment.

Thus, we agree with the referee's conclusion that the claimant does not qualify for a waiver based on economic grounds.   The claimant also does not qualify for a waiver based on any of the other waiver criteria.

Board of Review Decision (January 30, 2013) at 2 (Rec. at 101).

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, and the Objection # 107.00 is overruled.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

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