STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of Katherine Carroll, filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which upheld the finding of the Referee that the claimant, Katherine Carroll was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant had worked for this employer for approximately 28 years. The claimant's last day of work was January 8, 2001. The claimant filed her new claim for Employment Security benefits on January 10, 2001. In a decision dated January 29, 2001 the Director determined the claimant was not available as provided for under Section 28-44-12 of the Rhode Island Employment Security Act. Claimant filed an appeal. All parties were noticed that the hearing would take place on March 15, 2001, at which the claimant appeared and provided testimony. This claimant was represented by an attorney. Two representatives of the employer, the Human Resource Director and a Personnel Assistant, appeared and provided testimony.

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant did not meet the availability standards and was thus disqualified pursuant to Rhode Island General Laws

§ 28-44-12.

Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board determined that the Referee’s decision was a proper adjudication of the facts, and upheld the Referee’s decision. Thereafter, Katherine Carroll filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.

The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

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 Rhode Island General Laws § 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 v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Court 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. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

The issue before the Court is whether the Board’s determination that the Referee’s decision was a proper adjudication of the facts and that the claimant did not meet the availability requirements of Section 28-44-12 of the Employment Security Act was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review adopted the following findings of fact of the Referee:

"The claimant had worked for this employer as a dispatcher full time, last on January 8, 2001. The claimant had been out of work on leave from May 18 through December 21, 2000. The claimant filed for and was in receipt of Temporary Disability Insurance benefits during this time. In addition, the claimant has also filed for Workers' Compensation, which is still pending action. The claimant was cleared by her medical source able to return to work on December 22, 2000 with the following restrictions: no pushing or pulling with her hands; no lifting more than three pounds repetitively; wear hand splints at all times; and no repetitive movements. The claimant returned to work as a dispatcher, her normal position, on December 22, 2000. The claimant felt that there were no accommodations made to this position in light of her medical restrictions. The employer disputes this offering the position that the nature of the claimant's position meets the restrictions as cited. The claimant worked full time at a position, which can be considered sedentary. The claimant is required to utilize her hands and fingers typing data as a normal part of her job. The claimant feels that this exceeds the limits required by her medical sources. The claimant remained employed through January 8, 2001. The claimant left early that day citing pain and an inability to perform her job as a result. The claimant did not return to work the following day. Again, her doctor advised her by medical certificates dated January 9, 2001 and February 6, 2001 that the claimant is totally disabled at least through March 28, 2001."

The Board of Review adopted the following conclusions of the Referee:

"The issue in this case is whether or not the claimant is subject to disqualification under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act.

Section 28-44-12 reads as follows:


'28-44-12. Availability and registration for work. - (a) An individual is 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 registers for work and:

(1) Files a claim for benefits within the time limits and with the frequency and in such manner, in person or in writing, as the director may prescribe;

(2) Responds whenever called for work through the employment office; and

(3) Makes 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.

(c) No individual shall be eligible for any benefits for any week in which he or she fails, without good cause, to comply with the requirements as set forth above.'

In the instant case the claimant has been an employee of long duration with this employer. The claimant was out of work for approximately seven months due to a medical condition. The claimant was cleared able to return to work on December 22, 2000, but with restrictions as cited. In an attempt to comply with this medical clearance she did return to work, but left her position again on January 8, 2001 citing continuing medical problems. The claimant is awaiting further treatment from her medical source and has been classified as totally disabled at least from January 9, 2001 through March 28, 2001. Based upon the credible testimony and evidence presented at the hearing, I find that the claimant does not meet the availability requirements as cited in the above Section of the Law. It appears that the claimant cannot return to work under her current medical condition and, as a result, has been advised by her medical sources to not work. Therefore, the claimant in this instance has not demonstrated a full and unrestricted attachment to the local labor market and, as such, cannot be allowed benefits in this instance."

A review of the record appears to be uncontradicted that the claimant, on the date that she left her employment, was medically totally disabled from work. Does the fact that a person is totally disabled for employment due to a medical disability make the job unsuitable?

The record further demonstrates that Doctor Harvey M. Baumann, by report of January 12, 2001, found that to a reasonable degree of medical certainty that to continue work would be injurious to claimant's health, and that she was totally disabled. Again, by reports of February 6, 2001 and March 29, 2001, Dr. Baumann found claimant was totally disabled for employment.

Section 28-44-12(b) provides that:

"An individual is not eligible for benefits for any week of his or her partial or other employment unless during that week he or she is physically able to work and available for work."

The findings and conclusion adopted by the Board of Review demonstrates that there is probative, substantial and reliable evidence to demonstrate that the claimant was totally disabled and unavailable for work.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

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 on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.