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


SALVATORE J. LARICCIA:

v. : A.A. No. 07-11:


Department of Labor & Training, Board of Review :


DECISION

HIGGINS, J.   This matter is before the Court on the complaint of Salvatore J. LaRiccia, 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, Salvatore J. LaRiccia, was not entitled to receive employment security benefits.
DECISION OF REFEREE
“1.        TRAVEL OF THE CASE:

The claimant had been employed for Engineered Material a period of two months.  His last day of work was July 14, 2006.  In a decision dated August 10, 2006, the Director determined that the claimant had been discharged under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.  The claimant filed an appeal out of time by fax dated November 8, 2006.  A hearing on the appeal was scheduled.  A notice of hearing was sent to all interested parties.  The hearing was held on December 5, 2006.  The claimant testified by telephone.”

            The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant filed his appeal out of time and was thus disqualified pursuant to Rhode Island General Laws § 28-44-18.
            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, Salvatore J. LaRiccia 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.

  1. 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).
  2. The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
  3. . . . 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).
  4.  
  5.             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 filed his appeal out of time was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
  6.             The Board of Review adopted the following findings of fact of the Referee:
  7. “2.        FINDINGS OF FACT:
  8.  
  9. On August 10, 2006, the Director issued the decision to the claimant’s address of record.  The claimant did receive that decision in a timely fashion.  By means of that decision, he was advised of his appeal rights and appeal time limit.  In specific that the decision would become final unless an appeal is filed within fifteen calendar days.  The fifteen calendar day expired on August 25, 2006.  Initially the claimant did not plan on contesting the matter because he assumed he would be securing other employment to overcome the disqualification.  The claimant was unsuccessful in overcoming the disqualification and at that point filed his appeal out of time on November 8, 2006 resulting in the case at issue.”
  10.  
  11.       The Board of Review adopted the following conclusions of law of the Referee:
  12. “3.        CONCLUSION:
  13.  
  14. The issue in this case is whether or not the claimant filed an appeal out of time with good cause within the meaning of Section 28-44-39(b) of the Rhode Island Employment Security Act.
  15.  
  16. Section 28-44-39(b) reads, in part, as follows:
  17.  
  18. (b) 'Unless the claimant or any other interested party who is entitled to notice shall request a hearing within fifteen (15) days after the notice of determination has been mailed by the director to the last known address of the claimant and of any other interested party, the determination shall be final; provided, however, that for good  cause shown the fifteen (15) day period may be extended; and provided, further, however, that the director, on his or her own         motion, may at any time within one year from the date of the determination set forth in subsection (a)(1) reconsider the determination, if he or she finds that an error has occurred in connection therewith, or that the determination was made as a result of a mistake, or the nondisclosure or misrepresentation of a material fact.'
  19.  
  20. The burden of establishing good cause for filing an appeal out of time rests solely upon the claimant.  The evidence presented establishes that the claimant did receive the decision dated August 10, 2006 in a timely fashion.  By means of that decision, his appeal rights and appeal time limit were clearly indicated.  The fact that the claimant initially did not plan on contesting the matter and allowed the appeal time limit to lapse does not constitute good cause for filing an appeal out of time.  In the absence of any other evidence to establish good cause, I hold that the claimant’s filing of the late appeal was without good cause and the appeal may not be considered.
  21.  
  22. DECISION:
  23.  
  24. The claimant’s appeal is hereby denied and dismissed.”
  25.  

            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.