Opinion
CV064021166S.
11-28-2012
AETNA AMBULANCE SERVICE, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT.
UNPUBLISHED OPINION
JANE S. SCHOLL, J.
In this matter the plaintiff, Aetna Ambulance Service, Inc., an employer, appeals from the decision of the State of Connecticut, Department of Labor, Employment Security Appeals Division, Board of Review denying its petition to review the Board's decision affirming the decision of the referee, and finding that its employee, Sandra Rynaski, the " claimant, " was eligible for unemployment compensation benefits effective March 27, 2005 because she had not been discharged for wilful misconduct. The Board found that the claimant was eligible for unemployment benefits because the employee's actions, on which the plaintiff's decision to terminate the claimant was based, resulted from her medical condition and did not constitute wilful misconduct.
The Administrator has moved that judgment be entered dismissing the plaintiff's appeal and has submitted a memorandum of law in support of her motion. The plaintiff has filed an objection and a memorandum in support of its appeal. The Administrator filed a brief in reply. Oral argument on the Administrator's motion was held on October 1, 2012.
Appeals from the Board's decisions to the Superior Court are allowed pursuant to General Statutes § 31-249b. That statute states: " At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides. Any or all parties similarly situated may join in one appeal. In such judicial proceeding the original and five copies of a petition, which shall state the grounds on which a review is sought, shall be filed in the office of the board. The chairman of the board shall, within the third business day thereafter, cause the original petition or petitions to be mailed to the clerk of the Superior Court and copy or copies thereof to the administrator and to each other party to the proceeding in which such appeal was taken; and said clerk shall docket such appeal as returned to the next return day after the receipt of such petition or petitions. In all cases, the board shall certify the record to the court. The record shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee's findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both and all other evidentiary material accepted by them ... In any appeal, any finding of the referee or the board shall be subject to correction only to the extent provided by section 22-9 of the Connecticut Practice Book ..."
Practice Book § 22-9 in turn provides: " (a) Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses ..."
Thus, the scope of the court's review with regard to the issues presented in this appeal is very limited. " To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence ... The Superior Court, therefore, is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee." (Internal quotation marks and citations omitted.) Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159 (1999).
The decision of the Board of Review reveals that the Board adopted the findings of fact made by the Appeals Referee. He found that the claimant worked for the employer from September 1997 until March 21, 2005 as a paramedic. In June 2004, because of family issues, she spiraled into a fairly severe clinical depression and remains under regular treatment. As part of her treatment she receives medication which is subject to adjustment. On March 10, 2005 the claimant acted in a hostile and threatening manner to a dispatcher. The supervisor on duty noted that the claimant's behavior had been deteriorating over the past few weeks and was probably due to her lack of sleep. Subsequently, the claimant's medication was increased and there was no recurrence of inappropriate behavior. The employer was concerned about safety issues and discharged the claimant effective March 21, 2005. The plaintiff claimed that the claimant was discharged for misconduct and the claimant was initially denied unemployment compensation on that basis. On appeal, the Referee reversed that decision and found that: " [T]he claimant needed legally prescribed drugs of the proper dosage to function and she was not getting the right dosage nor was she sleeping. This, too, removes the deliberateness from her actions which she now knows were inappropriate." Record, p. 43. While affirming the decision of the Referee, the Board of Review also found that the claimant suffers from Attention Deficit Hyperactivity Disorder (ADHD), depression and anxiety. The Board found that anxiety and depression can exacerbate the lack of impulse control caused by ADHD. The Board also found that as of March 10, 2005, the dosages prescribed by the claimant's physician were no longer adequate to treat her depression, anxiety and ADHD. The Board concluded that " the claimant's conduct, while objectionable, did not rise to the level of deliberate misconduct because the wilfulness of the misconduct was excused by her medical condition." Record, p. 83.
" In appeals of this nature, the Superior Court does not try the matter de novo. It is not its function to adjudicate questions of fact. Nor may it substitute its own conclusions for those of the [board] ... Rather, it is the function of the court to determine, on the record, whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion." (Internal quotation marks and citations omitted.) Calnan v. Administrator, 43 Conn.App. 779, 784-85 (1996).
Thus this court cannot review the evidence and make its own determination of facts or judgments regarding the credibility of witnesses or what conclusions should be reached from the evidence, those are matters reserved to the Board. Calnan v. Administrator, 43 Conn.App. 779, 785 (1996). The court may review the findings of the Board but only where a motion to correct has been filed with the Board pursuant to Practice Book § 22-4 within two weeks of the filing of the record in court. Such was not done in this case. Since the plaintiff failed to file a motion to correct the Board's findings the court cannot review the facts found by the Board. JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 422 (2003). In fact, at oral argument, the plaintiff's counsel stated that a motion to correct was not filed because the plaintiff does not dispute the facts found by the Board.
The court can, however, determine whether the Board correctly applied the law to the facts the Board found. " If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Internal quotation marks and citation omitted.) Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159 (1999).
General Statutes § 31-236 provides, in part: " (a) An individual shall be ineligible for benefits; ... (2) ... (B) if, in the opinion of the administrator, the individual has been discharged or suspended for ... wilful misconduct in the course of the individual's employment ... (16) For purposes of subparagraph (B) of subdivision (2) of this subsection, ‘ wilful misconduct’ means deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied ..." In his decision, the Referee also cited Conn. State Agencies Regs. § 31-236-26a which provides: " In order to establish that an individual was discharged or suspended for deliberate misconduct in wilful disregard of the employer's interest, the Administrator must find all of the following: (a) Misconduct. To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee. (b) Deliberate. To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission. (c) Wilful Disregard of the Employer's Interest. To find that deliberate misconduct is in wilful disregard of the employer's interest, the Administrator must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest."
" Whether the circumstances of an employee's termination constitute wilful misconduct on the employee's part is a mixed question of law and fact ... As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant." (Footnote, internal quotation marks and citations omitted.) United Parcels, Inc. v. Administrator, 209 Conn. 381, 386 (1988).
The plaintiff claims that the conclusions of the Board have no basis in the record. " Our case law is clear that the failure to file ... a motion [for review] acts as bar to any further review of the facts found in an unemployment compensation benefits hearing." (Citations omitted.) Addona v. Administrator, 121 Conn.App. 355, 365 (2010). Therefore the plaintiff cannot, and has not, challenged the facts found by the Board. A review of the Board's decision indicates that it properly applied the provisions of the statutes and regulations to those facts when it found that the claimant's conduct did not constitute wilful misconduct. Those facts established that the claimant's conduct was not made with the deliberateness and intention required by the statute and regulations. The Board's findings are supported by evidence in the record, in particular, the letter from Dr. Barbara Elsner, the claimant's therapist, in which she stated that: " Because of ... medication inadequacy, Ms. Rynaski had poor impulse control as well as an increase of several other ADHD symptoms on the day of the incident. If her medication had been increased to higher levels and adjusted for the increased emotional and psychological strain she was undergoing, this incident probably would not have taken place." Record, p. 69.
The plaintiff claims that the Board improperly admitted into evidence Dr. Elsner's letter. Pursuant to General Statutes § 31-249 in an appeal to the Board " [s]uch appeal ... may be heard on the record of the hearing before the referee or the board may hear additional evidence or testimony ..." The Board, on October 13, 2005, asked the claimant to provide it with medical documentation regarding: " 1. The relationship between the claimant's medical conditions of ADHD, anxiety and depression, and the incident on March 10, 2004(sic). Specifically, whether and how any of these conditions precipitated the claimant's behavior. 2. Whether and how inadequate medication could have decreased the claimant's awareness of her conduct, or her ability to control her conduct." Record, p. 64. In response, the claimant submitted Dr. Elsner's letter.
The plaintiff claims that Dr. Elsner's letter was inadmissible since it is hearsay. However, pursuant to General Statutes § 31-244a, " [t]he referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure. They shall make inquiry in such manner, through oral testimony and written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions of this chapter." Thus the Board is allowed to consider hearsay evidence in its determination. " [H]earsay testimony, so long as it is sufficiently trustworthy, generally is admissible in administrative hearings." (Citation omitted.) Addona v. Administrator, 121 Conn.App. 355, 363 (2010). The letter here was from the claimant's therapist and the Board found it reliable under the test set forth in Richardson v. Perales, 402 U.S. 389 (1971). Record, p. 109.
Lastly, the plaintiff claims that the Board violated its procedural due process rights in that it admitted Dr. Elsner's letter without affording the plaintiff an opportunity to cross examine Dr. Elsner. This argument is without merit. The court notes that " procedural due process is a requirement of adjudicative administrative hearings ... and the admission of hearsay material ... without an opportunity to cross examine is ordinarily a deprivation of procedural due process." (Citation omitted.) Addona v. Administrator, 121 Conn.App. 355, 363 (2010). In this regard the record reflects that in the Board's October 13th " Request for Documentation Notice of Intent to Supplement the Record, " it stated that: " The parties have ten (10) days from the filing of the documents in which to object to the admission of the evidence, submit written argument in rebuttal, or request a further evidentiary hearing." Record, p. 64. After the receipt of the claimant's submission of the letter dated October 20, 2005 from Dr. Elsner the plaintiff was again notified that it could " object to the admission of the evidence, submit written argument in rebuttal, or request a further evidentiary hearing." Record, p. 71. The plaintiff did not request a further evidentiary hearing but instead submitted a response to claimant's supplementation of the record. Record, p. 74. No where in that response does the plaintiff request an opportunity to cross examine Dr. Elsner. Consequently, the plaintiff was twice advised that it could request a further evidentiary hearing in response to the submission of Dr. Elsner's letter but it did not do so. The plaintiff was provided the opportunity for cross examination that due process requires.
Therefore, based on the record before it, the court cannot conclude that the Board's action, determining the plaintiff's employee eligible for unemployment compensation benefits, was unreasonable, arbitrary, illegal or an abuse of discretion.
The defendant Administrator's Motion for Judgment (# 103) is granted.