Lynette J. Collins 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.

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's multiple appeals were late.

As the Board of Review found:

Section 31–248 of the General Statutes provides that to be timely an appeal from the referee's decision must be postmarked or filed with the board within twenty-one calendar days after the referee's decision was mailed to the appealing party.   Unless the appealing party, pursuant to Section 31–237g–34(c) of the Regulations of Connecticut State Agencies, shows good cause for filing the appeal after the twenty-first day, the referee's decision becomes final.   The board cannot exercise jurisdiction over the appeal and, therefore, cannot rule on the merits of the case.

The referee's decision in this case was mailed on October 5, 2012, and the claimant's appeal to the board from that decision was filed on January 16, 2013, almost three months beyond the twenty-one day appeal allowed by law.   The claimant has offered no reason for filing a late appeal and thus has not demonstrated good cause for the untimely filing of her appeal to the board.   We, therefore, cannot consider the appeal and are required, pursuant to Section 31–237g–41 of the Regulations of Connecticut State Agencies, to dismiss the appeal for lack of jurisdiction.   The decision of the referee is affirmed and the appeal is dismissed.

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

Board of Review Decision (February 28, 2013) at 1 (Rec at 59).

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.