STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

Phebean Akinnusotu

v. : A.A. No. 05-56

Rhode Island Department of Labor and Training, Board of Review :

DECISION

LAFAZIA, J. This matter is before the Court on the complaint of Phebean Akinnusotu (Claimant) filed pursuant to R.I.G.L. §42-35-15, seeking review of a final decision rendered by the Respondent, Board of Review (Board), which modified and reversed the decision of the Referee and thereby denied benefits to the Claimant. The Decision is confirmed for the reasons set forth below.
TRAVEL OF CASE
The claimant was employed as a certified nursing assistant by Elmhurst Extended Care (Employer) for a period of two years. Her last day of work was October 16, 2004, at which time she went out on temporary disability. Claimant was cleared to return to work on January 10, 2005 with certain restrictions. The employer did not allow her to return to work with such restrictions; the claimant then decided to seek a career change and enrolled in a course of study to become a teacher's aid. The claimant filed for employment security benefits on January 10, 2005. In a Director's decision dated March 4, 2005, it was determined that the claimant failed to meet the availability requirements of Section 28-44-12 of the Rhode Island Employment Security Act. The claimant filed a timely appeal, at which time a hearing was held. The claimant testified on her own behalf. No witnesses testified on behalf of the employer.
The Referee rendered a decision on April 1, 2005, which modified the decision of the Director and found claimant eligible for benefits subsequent to March 26, 2005. A timely appeal was filed and was heard by the Board of Review on May 2, 2005. The claimant was represented by counsel and additional evidence was presented on her behalf. On May 4, 2005, the Board issued a decision in which they modified and reversed the decision of the Referee and held that the claimant was not eligible for benefits. The claimant filed a timely complaint for judicial review. Jurisdiction for review is vested in the District Court by R.I.G.L. §28-44-52.
STANDARD OF REVIEW
The standard of review is provided by R.I.G.L. § 42-35-15(g), a section of the state Administrative Procedures Act, which provides:
42-35-15. Judicial review of contested cases.

(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Thus, on questions of fact, the District Court "… may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are 'clearly erroneous.'" Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) (citing R.I.G.L. § 42-35-15(g)(5)). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone, 246 A.2d at 215. See also, D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).
The Supreme Court, in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 200, 200 A.2d 595, 597 (1964), has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
…eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L. 1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act.

However, "the employment security act, even when liberally construed, was designed to provide benefits for unemployed individuals who are ready, willing, and able to work, but who are unable to find it." Charharyn v. Department of Employment Security, 85 R.I. 75, 80, 125 A.2d 241, 243 (1956). In Charharyn, the Rhode Island Supreme Court also noted, "to permit a claimant to place such restrictions on his availability, other than as specifically provided for in the statute, would violate the spirit and purpose of the act." Id.
DISCUSSION
The issue before this court is whether the Board's determination was supported by reliable, probative, and substantial evidence in the record and whether or not it is clearly erroneous.
This case involves the application and interpretation of the following provision of the Rhode Island Employment Security Act, R.I. Gen. Laws § 28-44-12 provides:
§ 28-44-12 Availability and registration for work. - (a) An individual shall not be eligible for benefits for any week of his or her partial or total unemployment unless during that week he or she is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed shall register for work and shall:
(1) File a claim for benefits within any time limits, with any frequency, and in any manner, in person or in writing, as the director may prescribe;
(2) Respond whenever duly called for work through the employment office; and
(3) Make an active, independent search for suitable work.
(b) If an unemployed individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the director, the individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services, such as job search assistance services, unless the director determines that:
(1) The individual has completed those services; or
(2) There is justifiable cause for the individual's failure to participate in those services.
Huntley v. Department of Employment Security, 121 R.I. 284, 292-293 (1979), the Court established a standard to determine the eligibility of claimants who place restrictions on their availability. The Court stated:
'First: are these restrictions bottomed upon good cause? If the answer is negative, the inquiry ends and the claimant is ineligible for benefits under the Employment Security Act. If the answer is affirmative, the second stage of the inquiry must be made: do the restrictions, albeit with good cause, substantially impair the claimant's attachment to the labor market? If the answer to this inquiry is affirmative, then the claimant is still ineligible for benefits under the Act.

If, on the other hand, the restrictions do not materially impair the claimant's attachment to a field of employment wherein his capabilities are reasonably marketable, in light of economic realities, then he is still attached to the labor market and is not unavailable for work in terms of our statute. For example, if a claimant, as in several cases cited, is unavailable for work for 2 or 3 hours out of the 24, in a multi-shift industry, it would be harsh, indeed, to declare such an employee unavailable. If a claimant placed such restrictions upon availability that he would only be available 2 or 3 hours out of 24 for work of a nature which he was able to perform, however good the cause or compelling the reason, he would have in effect removed himself from the labor market and could not, therefore, be eligible for employment benefits.'

The Board of Review included in its finding of facts that the claimant had limited her job search to a position as a private duty certified nursing assistant. The Board further found that claimant did not seek a position at any nursing home or assisted living facility. The Board took official notice of the fact that there is a shortage of CNA's to fill positions at nursing homes. The Board therefore concluded that the claimant did restrict her availability by seeking only private duty positions. The Board, in making this determination relied upon the Referee's transcript wherein claimant testified "private duty is easier." (Page 11). Although the testimony is not as clear as one might like, the record is void of any indication that the claimant applied for any position other than private duty.
The claimant, in her appeal, argues that the Board of Review erred in violating statutory provisions and exceeding their authority pursuant to R.I.G.L. §§ 28-44-12 and 28-42-73. It is the position of the Claimant that the decision of the Board constitutes an error of law because no evidence supports the agency's erroneous conclusions. However, the Board's questioning of the claimant indicated that she conducted a narrow work search, limiting her options to private-duty care. The Board took notice of the fact that nursing homes are struggling to find CNAs to work. The Board held the claimant did not exercise good cause in narrowing her availability to the few private-duty assignments that exist in the CNA field.

This Court has reviewed the entire record. A review of the entire record demonstrates that there is substantial, probative, and reliable evidence to support the findings of fact, conclusion, and decision of the Board of Review.
On findings of fact and on the weight of the evidence, this Court will not substitute its judgment for that of the administrative agency even if this Court might have reached a different conclusion.
Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." R.I.G.L. § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is AFFIRMED.