Tomasina Banks 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 Tomasina Banks.

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 she voluntarily left her job without good cause attributable to her employer.

As the Board of Review found:

The record reveals that the claimant left her job as a care giver because she believed that mold in the client's home aggravated her medical condition.   The claimant did not provide any evidence that her physician advised her to leave her position due to mold nor did she produce any reliable evidence that there was mold in the client's home.   The referee's reliance on the employer's evidence was not misguided.   The employer's witness provided credible testimony that the client, her housekeeper, other care givers and the scheduling coordinator did not find mold in the client's home.   We find that the referee properly elevated the employer's testimony over the claimant's self serving statements.   We concur with the referee's conclusion that the claimant voluntarily left suitable work without good cause attributable to the employer.

We find that the parties have not offered any argument in support of or in opposition to the appeal which would disturb the referee's findings of fact.   We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those finding and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee's findings of fact and decision.

Board of Review Decision (April 4, 2013) at 3 (Rec at 90).

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 # 101.00 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

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