David Dynan v. Administrator, Unemployment Compensation Act (2014)

MEMORANDUM OF DECISION

This is an appeal by David Dynan from a denial of unemployment benefits.   The Employment Security Board of Review (board) has certified and filed with the court a record of proceedings pursuant to Connecticut General Statutes Section 31–249b.

On December 28, 2006 the Administrator determined that the plaintiff was overpaid benefits and assessed a seven-week administrative penalty based on a finding of fraud.   The plaintiff was notified of the administrator's decision on December 28, 2006.   The last day to file an appeal to the appeals referee from the decision was January 18, 2007.   The plaintiff filed his appeal on April 30, 2009, over two years late.   The plaintiff claimed that he didn't file his appeal during the appeal period because he was working and did not have time to file an appeal.   The appeals referee found that the plaintiff had failed to prove good cause for his late filing and dismissed the appeal for lack of jurisdiction.   The plaintiff then filed an appeal on June 12, 2013 to the board from the referee's decision.   This appeal was filed over four years late.   The board adopted the referee's findings of fact and affirmed the decision of the referee.   The plaintiff then filed an appeal with this court which heard argument on the appeal on February 24, 2014.

“In the processing of unemployment compensation claims ․ the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law ․ [The administrator] is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits.  [See generally] General Statutes § 31–241 ․ This initial determination becomes final unless the claimant or the employer files an appeal within twenty-one days after notification of the determination is mailed.  [General Statutes § 31–241(a) ].   Appeals are taken to the employment security appeals division which consists of a referee section and the board of review.  [See] General Statutes §§ 31–237a, 31–237b ․ The first stage of claims review lies with a referee who hears the claim de novo.   The referees's function in conducting this hearing is to make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions ․ of the law.  General Statutes § 31–244.   The decision is appealable to the board of review.  General Statutes § 31–249.   Such appeals are heard on the record of the hearing before the referee although the board may take additional evidence or testimony if justice so requires.   [General Statutes § 31–249].   Any party, including the administrator, may thereafter continue the appellate process by appealing to the Superior Court and, ultimately, to [the Appellate and Supreme Courts].”  (Citations omitted;  internal quotation marks omitted.)  Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 755–57, 911 A.2d 736 (2006).”  Ray v. Administrator, Unemployment Compensation Act, 133 Conn.App. 527 (2012).

The board found as a fact that the plaintiff had failed to show good cause as to why he filed his appeal to the referee over two years late.   The plaintiff has failed to file a motion to correct the factual findings of the board and the board is required to dismiss the appeal for lack of jurisdiction.

If a party to an unemployment compensation appeal wishes to challenge a finding of the board he or she is required, pursuant to Section 22–4 of the Connecticut Practice Book, to file a timely motion to correct.   The claimant has not filed a motion to correct.  “Our Supreme Court has adopted this rule, stating that a claimant's “failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board.”  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 422.   This court has relied on Calnan multiple times in concluding that a claimant's failure to file a timely motion to correct the board's findings pursuant to Practice Book § 22–4 was dispositive of the appeal.   See Shah v. Administrator, Unemployment Compensation Act, supra, 114 Conn.App. 175–77;  Reeder v. Administrator, Unemployment Compensation Act, 88 Conn.App. 556, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005);  see also Chavez v. Administrator, Unemployment Compensation Act, 44 Conn.App. 105, 686 A.2d 1014 (1995) (motion to correct required under Calnan to challenge board's findings on appeal).”  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779 (2011).   Since the claimant has not filed a motion to correct the factual findings of the board this court cannot challenge the finding that the plaintiff has failed to show good cause in failing to file his appeal within the 21–day appeal period.

The court finds that the decision of the board to dismiss the plaintiff's appeal from the referee's decision was in accord with Connecticut General Statutes Section 31–241, and was not unreasonable, arbitrary or illegal.

The appeal is dismissed.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.