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

MICHAEL C. PICCOLI, JR. :

V. : A.A. 05-21

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

DEROBBIO, C.J. This matter is before the Court on the complaint of Michael C. Piccoli, Jr., 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, Michael C. Piccoli, Jr. was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant filed his claim for Employment Security benefits on November 18, 2004. The claim was made effective November 14, 2004. In a decision dated December 2, 2004, the Director determined that the claimant did not meet the availability requirements under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act. The claimant filed a timely appeal. A hearing on the appeal was scheduled. A notice of hearing was sent to all interested parties. The hearing was held on December 29, 2004. The claimant appeared and testified. Supplemental medical was presented prior to the hearing.
The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant did not meet the availability requirements of Section 28-44-12 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, Michael C. Piccoli, Jr. 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 was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

A majority of the Board of Review adopted the following findings of fact of the Referee:
"The claimant filed his claim for Employment Security benefits on November 18, 2004. The claim was made effective November 14, 2004. Previously the claimant was in receipt of Temporary Disability Benefits. He was medically released with the restrictions of no repetitive pushing, pulling, lifting, twisting and no lifting over thirty pounds. The claimant indicated he was able and available for full-time work. During this time period from the effective date of November 14, 2004 to the day of this hearing, the claimant has been conducting a work search of approximately three places per month."

A majority of the Board of Review adopted the following conclusions of the Referee:
"The issue in this case is whether the claimant meets the availability requirements under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act. In order to be eligible for Employment Security benefits, the individual must be able and available for full-time work and demonstrate that availability by conducting an active independent search for work during each week in which benefits are claimed. The evidence presented establishes that although the claimant is considered medically able for work, he has not been conducting an active independent search for work as three places per month approximate does not satisfy the work search criteria. Therefore, the claimant has not demonstrated his attachment to labor market. Benefits are denied accordingly."

The issue of the availability requirement of 28-44-12 is a question of fact. The evidence is uncontradicted. The burden of proving availability is upon the claimant. The record demonstrates that the claimant's efforts in finding employment were limited to three (3) job searches monthly. The majority of the Board of Review found as a matter of fact, on the totality of circumstances, that the job search by the claimant was insufficient and does not meet the job search criteria.

There is sufficient evidence on the record for the Board of Review to conclude that the claimant has not demonstrated by the preponderance of the evidence his attachment to the labor market.
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.