STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
THOMAS
A. VIGIL :
V.
: A.A. 03-77
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 Thomas A. Vigil,
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 decided
that the claimant, Thomas A. Vigil filed a late appeal and failed to show good
cause for such late filing and was denied benefits.
The travel of the case is as follows.
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 was
dismissed for want of prosecution and the Director’s decision was sustained.
An
appeal thereafter was taken and heard before the Board of Review on June 5,
2003, in connection with the claimant’s appeal dated April 14, 2003, from a
decision of a Referee dated January 22, 2003, denying the claimant benefits
under Sections 28-44-12 and 28-42-68 of the Rhode Island Employment Security
Act. The claimant appeared at the
hearing.
The Board determined that the claimant filed an appeal out of time and
the appeal was denied. Thereafter, Thomas A. Vigil 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 Board of Review made the following findings of fact and conclusions:
“The
claimant in this case appealed from a decision of the Referee dated January 22,
2003 and had until February 6, 2003 to file his appeal.
The statute requires that appeals be taken fifteen (15) days from the
date of the decision unless justification is shown.
The
claimant has failed to justify the late filing of the appeal in the instant case
and the appeal is denied and dismissed.”
The findings of fact of the Board of Review, from a review of the entire
record, appear to be uncontradicted.
The
record is clear that on January 22, 2003 the Referee rendered a decision which
was mailed on January 22, 2003; said decision included the claimant’s appeal
rights, which are:
“APPEAL
RIGHTS
This
decision will become final unless, within fifteen (15) calendar days
of the mailing date hereof, you file an appeal in writing to the Board of
Review for the Department of Labor & Training. The appeal can be delivered, mailed, faxed or e-mailed to the
Board at 275 Westminster Street, Providence, RI, 02903-3434.
Fax number: (401) 222-3514. E-mail: BORINFO@DLT.STATE.RI.US
WEBSITE: www.dlt.state.ri.us/bor.”
The
language included in the appeal rights, which is clear and unambiguous, requires
said appeal to be filed within 15 days of the mailing of the Referee’s
Decision.
The
record is clear that a late appeal was filed on April 14, 2003, almost two
months and three weeks after the mailing of the Referee’s decision.
Section
28-44-46 provides:
28-44-46.
Decision of appeal tribunal. – After
a hearing, an appeal tribunal shall make findings and conclusions promptly and
on the basis of these, affirm, modify, or reverse the director’s
determination. Each party shall be
furnished promptly a copy of the decision and supporting findings and
conclusions. This decision is final
unless further review is initiated pursuant to § 28-44-47
within fifteen (15) days after the decision has been mailed to each party’s
last known address or otherwise delivered to him or her; provided, that the
period may be extended for good cause.
If a claimant fails to file an appeal within the statutory time, there
must be a showing of good cause for such late filing.
The burden is upon the claimant to demonstrate good cause.
The record shows that the claimant received notice of the Referee’s
decision and of the appeal hearing date. On
January 22, 2003, the claimant indicates, that he called to let the Board know
he would be in California for business starting the day of the scheduled hearing
until January 27, 2003.
On pages 4 and 5 of the transcript of the hearing the Chairman stated:
“CHAIRMAN.
Mr. Vigil, Mr. Vigil, you were late for the Referee hearing, you got a
decision. You did…you were away
for a Referee hearing, you appeared late and you postponed this hearing the
Board at least twice, is that correct…on…on reasons that you were here,
there and anywhere and you…you come in this morning without any…anything to
back up any of this.
CLT.
I didn’t know it was about this. I
thought it was…
INTERRUPTION.
CHAIRMAN.
You were noticed it was a late appeal, that is what you were noticed on.
The notice says late appeal. You’ve
got to come in and prove why the appeal was late.
CLT.
I thought the appeal was to appeal the reason why I was getting money
from unemployment. I don’t know
how to prove that I was out of town. When
I was out of town for my last hearing I was told to give them…to give them my
fax and a copy of my…”
The attorney for the Board of Review searched the official records in
order to determine if there was any documentation of telephone calls received by
the Board of Review.
Page 7, Referee’s Hearing Transcript:
“CHAIRMAN. Mr. Brody do we have any...you have the file in front of you.
Do we have any…records of phone call conversations in the file
regarding the testimony the claimant’s given.
BRODY.
There are no…there’s no documentation of telephone calls.
CLT.
It makes sense to me that…if I called to say I was going to be out of
town in California that you guys would even still have that, you know I called
saying I’m not going to be here.
CHAIRMAN. It would be in your file if in fact…(inaudible) called because
that’s the procedures here. If
someone calls about postponement or the reason they’re not going to be here
then that’s automatically entered into the file and that’s why I’m asking
to see if there is anything in there.
BRODY.
There don’t appear to be any memos from staff.”
The issue in this case is a question of fact.
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.