Esperanza Aviles v. Administrator, Unemployment Compensation Act (2013)

MEMORANDUM OF DECISION

STATEMENT OF CASE

This unemployment compensation appeal to the Superior Court is brought by the employee, Esperanza Aviles, from a decision of the employment security appeals division board of review (board).   On October 11, 2011, the defendant, Administrator of the Unemployment Compensation Act (administrator) found Aviles ineligible for unemployment benefits from her employer, Fosdick Fulfillment Company, (employer).   Upon Aviles' appeal to the next level, the employment security appeals referee (referee), on December 23, 2011, affirmed the administrator's decision, and dismissed the appeal.   The referee found that Aviles was ineligible for benefits because Aviles was not able to work, available for work, and/or was not making reasonable efforts to find full-time work from September 2011 until December 10, 2011.   The referee concluded that benefits were appropriately denied from September 18, 2011 to, December 10, 2011, under General Statutes § 31–235(a)(2).

Aviles timely appealed the referee's decision to the board, and on May 15, 2012, the Board affirmed the referee's decision, dismissed the appeal, and ruled that she was disqualified from receiving unemployment compensation benefits during that period.   On June 7, 2012, Aviles filed a motion to reopen the board's decision, which motion was denied by the Board on July 20, 2012.   Subsequently, on August 20, 2012, Aviles filed the present appeal with the court.   She states that she disagrees with the decision and that she is willing to work, however she has medical limitations.   The administrator requests the court to dismiss Aviles' appeal and affirm the board's decision.   A hearing on the plaintiff's appeal to this court was held on September 30, 2013.   The respondent, Administrator appeared.   The plaintiff, Esperanza Aviles failed to appear.

A. Standard of Review

“As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§ 31–235 and 31–236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.”  United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 386.   Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference.  Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).

Under General Statutes § 31–249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).   In the absence of a motion to correct the findings of the board, this 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.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”   (Internal quotation marks omitted.)  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786 (2011).  “[A] [claimant's] failure to file a timely motion for correction of the board's findings in accordance with § 22–4 prevents further review of those facts found by the board.”  Id.

Here, the board adopted the factual findings of the referee with regard to the reasons for Aviles' ineligibility for benefits.   Since Aviles did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by § 22–4, and which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

B. Analysis

General Statutes § 31–235(a)(2) provides in relevant part that “[a]n unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that ․ [he] is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work ․” See also Regs., Conn. State Agencies, D.O.L., § 31–235–2(2).   Section 31–235–4 of the regulations provides in relevant part that “[t]he Administrator shall find that an individual is physically and mentally able to work so long as the individual is capable of performing some type of remunerative work.”  Section 31–235–6(a) of the regulations further provides that “[i]n order to find an individual eligible for benefits for any week, the Administrator must find the individual available for full-time work during that week.   An individual is available for work if he is genuinely exposed to the labor market.   An individual is genuinely exposed to the labor market if he is willing, able and ready to accept suitable work.”

The referee found, and the board adopted, the following facts.   Aviles received a copy of the Administrator's publication entitled A guide to Your Rights and Responsibilities When Claiming Unemployment Benefits in Connecticut.   Aviles read and understood the booklet.   The referee took official notice of the Appeals Division Case # 4074–AA–11, Aviles v. Fosdick Fulfillment Company.   The referee further found that the plaintiff was available from 7:00 a.m. to 6:00 p.m. and any employment preferably in the assembly/packing field.   The plaintiff was seeking work paying a salary range of $10.00 per hour.   The plaintiff expected to have surgery on January 12, 2012.   The referee further found that Aviles had a medical restriction from September 18, 2011 until December 10, 2011, and had not been released to full-time employment.   Aviles had her own transportation and was willing to commute a reasonable distance to her employment.   The referee found that Aviles had not kept a log of her efforts and had not made three (3) or more efforts per week.   The referee concluded that Aviles presented evidence that her physician had signed the Form UC–28, Physician's Certification of Health.   Aviles' physician indicated as of September 29, 2011, she was not able to work full-time.   Aviles was scheduled for surgery on January 12, 2012, and had not been released to duty by her doctor.   The referee found that the plaintiff was not able to work during the period of September 18, 2011 through December 10, 2011 pursuant to General Statutes § 31–235(a)(2).   The referee therefore affirmed the administrator's decision denying benefits and dismissed the plaintiff's appeal.   The board, after reviewing the record, including the recording of the referee's hearing, concluded that the referee's conclusions of law were supported by the findings of fact set forth in the referee's decision and that those findings of fact were supported by the record of the referee's hearing.   The board further found that the referee's decision was consistent with the provisions of General Statutes § 31–235(a)(2).   The board therefore adopted the referee's findings of fact and decision and dismissed the plaintiff's appeal.

The plaintiff thereafter, filed a timely motion to reopen the board's decision on May 15, 2012.   In denying the plaintiff's motion to reopen, the board, after having again reviewed the record, concluded that the plaintiff did not demonstrate she was able to work, available for work or made reasonable efforts to obtain work during the period extending from September 18, 2011 through December 10, 2011.

Due to the plaintiff's inability to work full-time due to her medical restrictions, and not making reasonable efforts to obtain work, as found by the appeals referee, and as affirmed by the board, she is ineligible for benefits for the time period sought pursuant to General Statutes § 31–235(a)(2).   The court finds that the board's decision was supported by the record, reasonable, not arbitrary nor illegal, and therefore the board was justified in the conclusion it reached.

C. Conclusion

Accordingly, for the foregoing reasons, the plaintiff's appeal is dismissed.

Wilson, J.

Wilson, Robin L., J.