Robinson Osorio v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

This is a joint decision.   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 Robinson Osorio.

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 is 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 filed a late appeal, without good cause, thereby depriving the Referee of statutory jurisdiction over the claimant's appeal.

As the Board of Review found:

We find that the administrator's decision in this case was mailed on May 3, 2013, and that the claimant's appeal to the referee from that decision was filed on August 16, 2012, nearly three months beyond the twenty-one-day appeal period allowed by law.   In response to the claimant's appeal, the appeal division scheduled a hearing for September 5, 2012, to determine whether the claimant had good cause for filing an untimely appeal.

The record of the referee's hearing reveals that the claimant received timely notice of the administrator's May 3, 2012 decision.   However, the claimant did not read the decision in its entirety.   A party's failure to carefully read the appeal rights advisement precludes a finding of good cause for the late filing.   See Goadby v. Preferred Utilities Mfg. Corp., Board Case No. 104–BR–89 (2/23/89).   Therefore, we conclude that the referee was required by law to dismiss the appeal because the claimant did not show good cause for the late filing of his appeal to the referee.   In so ruling, we adopt the referee's findings of fact as our own.

Board of Review Decision (February 15, 2013) at 2–3 (Rec.74–75).

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 two motions for Judgment, Motion # 101.00 are granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

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