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

LYNN MARIE PIMENTAL

V. :

A.A. 06-05 : : DEPARTMENT OF LABOR AND : TRAINING, BOARD OF REVIEW :


DECISION

 

HIGGINS, J.   This matter is before the Court on the complaint of Lynn Marie Pimental, 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 appeal be dismissed for lack of prosecution and claimant was not entitled to receive employment security benefits.
The travel of the case is as follows.  The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that appeal be dismissed for lack of prosecution and was thus disqualified.
            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 dismissal.  Thereafter, Lynn Marie Pimental 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 not 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.
  6.             The Board of Review adopted the following findings of fact of the Referee:
  7. “This cause came before a Referee of the Board of Review on claimant’s appeal from a decision of the Director.  This appeal was set down to a definite date for a hearing and notice of said hearing was sent to all interested parties.  Claimant did not appear at said hearing.  There being no apparent error in this case, the appeal in the above-entitled cause is dismissed for want of prosecution and the Director’s decision is hereby sustained in said cause.”
  8.  
  9.       The Board of Review further found:
  10. “This matter came on to be heard before the Chairman of the Board of Review on December 19, 2005, in connection with the claimant’s appeal dated September 12, 2005, from a decision of a Referee dated August 16, 2005, denying claimant benefits under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act.  The claimant was not before the Referee because she was hospitalized.  The claimant was released from the hospital on August 30, 2005.
  11.  
  12. The issue before the Board was whether the claimant established good cause under Section 28-44-46 of Act to consider her appeal.  The Board is without jurisdiction or the power to consider an appeal unless the claimant has filed the appeal within 15 days of the Referee’s decision.  The claimant’s appeal was filed approximately 12 days after the appeal period expired.  At the hearing before the Board, the claimant provided testimony and argument.  The claimant explained she was in the hospital.  We accept this fact, however, after being released; a one sentence fax or a telephone call could have preserved her appeal or demonstrated good cause for granting her appeal.  However, the claimant took no action for ten days.  She has not shown good cause for filing her appeal late.
  13.  
  14. It is noted from the record that the claimant has been absent from hearings and/or late on several occasions in filing her appeals.  On some of the occasions the claimant was at fault, but on others she was absent or late because of circumstances beyond her control.  The claimant called the Department of Labor and Training on or about July 14, 2005 to reopen her claim.  At that time the claimant was instructed to provide information by July 26, 2005, regarding her availability; namely a note from her physician and work search efforts.  The claimant did not respond in a timely manner and her claim was denied on the issue of availability.  For this reason the claimant’s appeal is denied.
  15.  
  16. It is noted that the claimant is eligible on the underlying issue:  See Board’s decision 05-5379 (20052826BU).  The claimant is and has been denied Employment Security benefits because she is not available for work.  The claimant has presented before the Board with work search information and documentation.  The claimant is advised that she should immediately report to the local office to reestablish her availability for work; presenting to the local office the work search documentation she exhibited before the Board.  The claimant is reminded that availability is an ongoing requirement, and the claimant, provided she has work search documentation, must establish her availability each week.  In showing an attachment to the local work force, the claimant would be eligible for benefits.”
  17.  
  18.              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.
  19.             The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:
  20.             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.
  21.  
  22.             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.