Opinion
NNHCV185042443S
09-07-2018
Nadine WYLIE v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, et al.
UNPUBLISHED OPINION
PIERSON, J.
BACKGROUND
This is an appeal brought by the plaintiff, Nadine Wylie, from the decision of the Employment Security Board of Review. The record below reveals the following. The defendant administrator ruled that the plaintiff was ineligible to receive benefits from November 26, 2017 through December 16, 2017 because she was "not available for work as required by law." The plaintiff appealed the defendant’s decision, which decision was affirmed by the referee. The plaintiff appealed the referee’s decision to the Employment Security Board of Review. The Board adopted the referee’s findings of fact with modification, and affirmed the referee’s decision.
The Board concluded that the plaintiff was not available for work, as required by law, based on physical disability and a failure to make reasonable efforts to obtain full-time work, for the period of November 26, 2017 through December 16, 2017. See General Statutes § 31-235(a)(2) ("[a]n unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that ... such individual is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work ..."); Regs., Conn. State Agencies, D.O.L. § 31-235-2(2); Regs., Conn. State Agencies, D.O.L. § 31-235-22 ("[t]he Administrator shall require that for each week for which a claim for benefits is made, an individual must make reasonable efforts to obtain work"); Regs., Conn. State Agencies, D.O.L. § 31-235-23 ("[t]he Administrator shall find that an individual’s efforts to obtain work are inadequate in any week if the individual has not brought his skills and aptitudes to the attention of a sufficient number of employers to effectively enhance his prospects for securing suitable work at the earliest possible date").
The foregoing conclusions were based upon certain factual findings of the Board, as follows: from November 26, 2017 through December 18, 2017, the plaintiff filed weekly claims for benefits; from November 26, 2017 through December 18, 2017, the plaintiff was out of work on leave due to a failed drug test for marijuana; the plaintiff had been diagnosed with cannabis use disorder and has used marijuana on and off over a period of ten years; from November 26, 2017 through December 18, 2017, the plaintiff was engaged in an outpatient program at Hill Health due to her cannabis use disorder; the plaintiff’s physician released her to return to work upon the completion of her drug rehabilitation program; the plaintiff completed her drug rehabilitation program on December 15, 2017; the plaintiff attends a weekly ongoing treatment program where she sees a therapist and attends a meeting at Hill Health; the plaintiff has not obtained a sponsor; the plaintiff received the administrator’s booklet entitled, "Unemployment Insurance: A Guide to Collecting Benefits in the State of Connecticut," and the guide provides guidance to claimants in conducting a work search and documenting work search efforts; the foregoing booklet explains that courts consider three contacts a week to be reasonable and that keeping a record of work search efforts is important; during the claim week ending December 2, 2017, the plaintiff sought work from one employer; during the claim week ending December 9, 2017, the plaintiff failed to seek work from any employer; during the claim week ending December 16, 2017, the plaintiff sought work from two employers; and plaintiff returned to work on December 18, 2017.
The Board made additional findings: "[T]he [plaintiff] admitted at the referee’s hearing that she did not keep a dated list of the employers she contacted each week in an attempt to obtain new employment. She was only able to recall a few of the jobs she applied to during the relevant period and did not establish that she made at least three contacts each week that she filed claims for benefits. Moreover, the [plaintiff] has failed to provide documentary evidence with her appeal to corroborate her claim that she made reasonable efforts to find work. Therefore, we find this contention to be without merit. We also note that the [plaintiff’s] physician’s certification in the record reflects that she has been diagnosed with cannabis use disorder. Regardless of her diagnosis, the [plaintiff] admitted that she was not released by her doctor to return to work until December 15, 2017, when she completed her outpatient rehabilitation program. Therefore, we agree with the referee that the [plaintiff] was not physically able to work during the period at issue."
Based on the foregoing, the Board dismissed the plaintiff’s appeal, finding that a dismissal was reasonable, and not arbitrary, illegal, or an abuse of its discretion. This appeal followed.
DISCUSSION
Appeals from the Board to the Superior Court are regulated by General Statutes § 31-249b. Under § 31-249b, the court "acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, Unemployment Compensation Act, 192 Conn. 104, 112, 470 A.2d 1196 (1984). "To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record ... The court must not retry the facts nor hear evidence ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Internal quotation marks omitted.) Resso v. Administrator, Unemployment Compensation Act, 147 Conn.App. 661, 664-65, 83 A.3d 723 (2014). "[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts." (Internal quotation marks omitted.) Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 785, 12 A.3d 1067 (2011).
If a claimant wishes to challenge the factual findings of the Board, she must file a motion to correct the findings within two weeks of the record being filed with the Superior Court. See id., 786; see also Practice Book § 22-4. "Our case law is clear that the failure to file such a motion acts as a bar to any further review of the facts found in an unemployment compensation benefits hearing." Addona v. Administrator, Unemployment Compensation Act, 121 Conn.App. 355, 365, 996 A.2d 280 (2010). "In 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." (Internal quotation marks omitted.) Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 275, 22 A.3d 675 (2011). This court is bound by the Board’s findings of fact and may not substitute its own conclusions for those of the Board unless the Board’s action was unreasonable, arbitrary, illegal, or an abuse of discretion. See Resso v. Administrator, Unemployment Compensation Act, supra, 147 Conn.App. 664-65.
In the present case, the plaintiff did not file a motion for correction. Consequently, under applicable legal standards, the court may not disturb the findings of fact of the Board. However, the court may review its legal conclusions. See Resso v. Administrator, Unemployment Compensation Act, supra, 147 Conn.App. 664.
In her brief on appeal, the plaintiff contends that she was "denied benefits unfairly I was put on suspension for marijuana use for [an] injury I got on the job" and further, that she "chose to use marijuana once every two weeks for pain to 2/3 puffs at home when I was not working, my doctor did not want to give me hard pain medication pills that could lead to serious addiction ..." She also cites one case, Administrator of Unemployment Act v. Hasen, Superior Court, Docket No. CV-98-0586124 S (Jan. 9, 2001, Sullivan, J.) (29 Conn.L.Rptr. 16).
The plaintiff was denied benefits on the grounds that she failed to make reasonable efforts to obtain work, as required by § 31-235(a)(2) and certain regulations promulgated thereunder. The Board’s conclusions concerning lack of physical ability and a failure to make reasonable work efforts were based on factual findings- which cannot be challenged or disturbed here- that the plaintiff "did not establish that she made at least three contacts each week that she filed claims for benefits. Moreover, ... the [plaintiff] admitted that she was not released by her doctor to return to work until December 15, 2017, when she completed her outpatient rehabilitation program. Therefore, ... the [plaintiff] was also not physically able to work during the period at issue." On the basis of the record, the Board’s decision was logically based upon its findings of fact and its decision was not unreasonable, arbitrary, or illegal. See, e.g., Carr v. Administrator, 26 Conn.Supp. 336, 337, 223 A.2d 313 (1966) ("Although there may be an honest disagreement as to whether one or two visits a week constitute reasonable efforts in looking for work under our statute, it cannot be said that the commissioner acted unreasonably, arbitrarily, illegally, or with improper motive. It is not the function of this court to adjudicate questions of fact. Nor can it substitute its own conclusions for those of the commissioner").
Moreover, the plaintiff’s reliance on Administrator of Unemployment Act v. Hasen, supra, is unavailing. Hasen is clearly distinguishable from this case in that it did not involve a denial of benefits based on a claimant’s physical disability or failure to make reasonable efforts to obtain work, as is the case here. Rather, in Hasen, the court addressed the issue of whether a drug-addicted employee, who was in denial about his addiction, was disqualified from claiming benefits due to "willful misconduct in the course of his employment," as provided by General Statutes § 31-236(2)(B). Administrator of Unemployment Act v. Hasen, supra, 29 Conn.L.Rptr. 17. The Hasen court also considered whether "a person who is drug dependent must have been in possession of the drug which caused the addiction and hence the claimant would be disqualified under § 31-236(2)(B)." Id., 18. Section § 31-236(2)(B) has no bearing on the plaintiff’s appeal in this case and Hasen did not involve a termination of benefits based on the provisions of § 31-235(a)(2). As a result, the plaintiff’s reliance on Hasen is misplaced.
CONCLUSION
For the foregoing reasons, the plaintiff’s appeal is dismissed.