STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DONNA M. GEORGE :

V. : A.A. 99-86

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW

D E C I S I O N

McLOUGHLIN, J. This matter is before the Court on the complaint of Donna M. George, 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 was not entitled to receive employment security benefits.
The facts and travel of the case are as follows. The claimant, Donna M. George, was terminated from the employ of Robert Enterprises, where she served as bench worker. Subsequently, claimant, Donna M. George, filed for employment security benefits. The Director issued a notice of determination which denied benefits to the claimant. Claimant filed a timely appeal, and a hearing was held before the Referee. The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant was disqualified under Section 28-41-6 and was thus disqualified pursuant to Rhode Island General Laws § 28-41-6.
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 that the claimant, Donna M. George, and upheld the Referee's decision. Thereafter, Donna M. George 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 was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
The following Findings of Fact were made:
"FINDINGS OF FACT:

The claimant had been employed at Robert Enterprises through February 24, 1999 when she was injured on the job. The employer does not carry Workers' Compensation Insurance. Because of the lack of Workers' Compensation Insurance, the claimant decided to proceed against Temporary Disability Insurance on this injury.

CONCLUSIONS:

The issue in this case is whether or not the claimant is subject to the disqualification provisions of Section 28-41-6 of the Rhode Island Temporary Disability Insurance Act.

The matter of electing to proceed against Temporary Disability rather than pursue a Workers' Compensation claim has been addressed by the courts in the case of Louis Regine vs. the Department of Employment Security, CA file #72-2551. In that case the court held that a claimant does not have a right of election to proceed against Temporary Disability Insurance when the injury is, in fact, work related. Also, the question of an employer not carrying Workers' Compensation Insurance is addressed under Section 28-36-10 of the Workers' Compensation Act, which states that an employer who fails to carry Workers' Compensation Insurance becomes self-insured for a particular accident that happens during the course of work. The facts in this case establish that the injury is work related and that the employer does not carry Workers' Compensation Insurance. Accordingly, I must hold that the claimant may not proceed against the Temporary Disability Insurance, but must proceed directly against the employer that has become self-insured for recovery of wages resulting from this on-the-job injury. Benefits must be denied on this issue."

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.