STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
ROBERT F. THORESEN :
V. : A.A. 03-139
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 Robert F. Thoresen, 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,
Robert F. Thoresen had filed a late appeal.
The travel of the case is as follows. The claimant was employed for 28 years
and 9 months by the employer. His last day of work was December 28, 2001. He
filed a claim for Employment Security benefits on January 14, 2002. In a decision
dated October 3, 2003, the Director determined that the claimant left his job
without good cause under the provisions of Section 28-44-17 of the Rhode Island
Employment Security Act. The claimant filed a late appeal of this decision on
September 23, 2003. A hearing on the appeal was held on October 16, 2003, at
which time the claimant testified telephonically. The employer, with proper
notice, did not appear.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant failed to show good cause
for filing a late appeal and was thus disqualified pursuant to Rhode Island
General Laws § 28-44-39(b).
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, Robert F. Thoresen
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 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
an appeal out of time without good cause pursuant to Section 28-44-39(b) 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:
"On February 1, 2002, the Director's office sent to the claimant a notice
of claimant disqualification in this matter. The notice was sent to the claimant
at 623 Birchwood Drive, Narragansett, Rhode Island 02882-1020. The claimant
acknowledged that this was his mailing address. The claimant also acknowledged
that he received the notice of the Director's decision in a timely fashion and
read the notice and the appeal rights noted on the decision. The claimant failed
to file his appeal until September 23, 2003, beyond the 15-day time period for
such an appeal. His delay in filing his appeal was due to the fact that he simply
chose not to appeal the Director's decision at that time."
The Board of Review adopted the following conclusions of the Referee:
"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.
Section 28-44-39(b) reads, in part, as follows:
(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 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.'
The notice of the Director's decision was mailed on February 1, 2002. The claimant
was in receipt of this decision in a timely fashion. The decision clearly stated:
'If you disagree with this determination, you must file a written appeal within
15 days of the mailing date indicated on this decision or it WILL BECOME FINAL.'
The evidence presented at the hearing establishes that the claimant received
the notice of the Director's decision in a timely manner, but did not exercise
his right of appeal in a timely fashion, although he understood the requirements
for appeal. No valid reason was provided by the claimant for his failure to
file his appeal in a timely manner. Therefore, I must hold that the claimant
has failed to show good cause for filing his appeal out of time under the provisions
of the above Section of the Act."
The claimant, through his attorney, argues that the claimant had worked 28 plus
years and did not really understand the process, and that he agreed with the
initial decision; however, he learned that others had received benefits.
There is evidence on the record that the Director mailed his decision on February
1, 2002. Notice was sent to his address, which the claimant acknowledged; and
the appeal was filed on September 23, 2003, more than nineteen (19) months after
receiving notice. There is sufficient evidence on the record for the Board of
Review to make it's findings of fact and conclusions that the claimant has failed
to show good cause for filing a late appeal.
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.