UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I had to establish the Claimant's mental condition during a key period: the time between the mailing of the Notice of Adverse Determination and the 30 day cut off date for filing a Request For Hearing. However, I discovered that the Claimant had sought treatment for mental health issues after the 30 day cut off date for filing a Request For Hearing. I decided to research recent cases on the issue.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is my written request and their response. Although the Claimant signed a HIPAA Release allowing me to review the files, the mental health center, for reasons unknown to me, was reluctant to discuss the matter with me and/or send me any records, and without having any records, I could not offer any specific questions other than a request to discuss the Claimant's history and review the Claimant's file in order to prepare for the remanded hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

However, I discovered that this was a situation where it was very difficult to speak to someone at the Claimant's medical health center about the Claimant's medical condition. Almost two months of weekly calls to the mental health center went unanswered. Finally, in October, 2010, I decided to make a written record and make my request to speak to someone in the mental health center in writing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The Claimant signed a HIPAA release and delivered it to the mental health center where the Claimant was being treated. At such point, I was able to speak to the mental health center.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Naturally, to obtain copies of the Claimant's medical records, I was required to have the Claimant sign a HIPAA Release. The NYS Courts website has an excellent form with instructions and a link to it is as follows:

HIPAA RELEASE

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Regarding the underlying issue of misconduct: that was handled by another attorney in another tribunal and the Claimant delivered to me a certified copy of the disposition of that matter - which I felt resolved the charges of misconduct. The main problem in this matter was the issue of mental condition as an reasonable excuse for a late filing of a request for hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Of course, I immediately phoned the Claimant, advised the Claimant that we succeeded in getting a new hearing and that we needed to prepare for the new hearing. Specifically, I needed to get:

1. The Claimant's medical history for the period in question on the issue of timeliness of request.

2. The final disposition of the other tribunal regarding the issue of misconduct.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the decision from the Appeal Board mailed on August 5, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

A decision from the Appeal Board was mailed on August 5, 2010. Here is page 1.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Now that I realized that the Appeal Board would hear the matter just on the Statement on Appeal, I waited for a decision. It was not until May 2010, that I found out from the Appeal Board (by calling them every two weeks) that the appeal had just been assigned to a Board member but that no decision had been reached as of May 2010. I constantly make oral requests to expedite the matter because of the Claimant's homelessness and other conditions.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is the final return of a submission of additional documentation, mailed on March 11, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is the another return of a submission of additional documentation, mailed on March 8.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The next events took place in the beginning of March 2010: the Appeal Board would not consider the submission of the additional documentation. Here is the first return of my first submission of additional documentation, mailed on March 4.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

As I filed the second Statement on Appeal (in response to the Amended Notice of Appeal), I advised the Claimant and now it was time to wait.

MLK

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 3 of the second Statement of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the second Statement of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

And on March 5, 2010, I served another Statement of Appeal in response to the "Amended Notice of Appeal". Through this, I felt that I was covering any potential claim of default on the amended notice of appeal, plus I was able to consolidate all of the additional documentation I submitted into one Statement of Appeal. Here is the first page.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Then on or about March 4, 2010, I received an "Amended Notice of Appeal" dated March 2, 2010 from the Appeal Board. The "Amended Notice" added my name as counsel.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

There were other post Statement of Appeal documents submitted to the Appeal Board in addition to those which arose from the Claimant's filing for a redetermination. A week after I filed the Statement of Appeal on February 11, I also requested the Appeal Board to consider additional documentation with respect to the issue of timeliness - these were medical documents relating to the Claimant's mental condition and this was the cover letter.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is the other item that was sent to the Appeal Board - I am omitting the attached documentation to preserve client confidentiality.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is one item that was sent to the Appeal Board - I am omitting the attached documentation to preserve client confidentiality.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

In any event, I felt it was proper and necessary to advise the Appeal Board of this situation with the reapplication, etc. and forwarded the documentation to the Appeal Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The Claimant then advised me of receiving a letter from the DOL dated 2/17/10 which was a determination of no qualification for the year of 2010(as the Claimant had no income since December 2008 and the 2009 notice of adverse determination had the standard language of no eligibility unless earning from a subsequent employer 8 times the benefit rate, etc.). Of course, the Claimant wanted to contact the DOL to determine eligibility under the alternative base period but it was my opinion that under the law, the Claimant would only be entitled to benefits if we succeed on the appeal.

MORE ON HATE MAIL

I was asked by some to post the "hate mail" I received along with some other questions, but suffice it to say whether a lawyer, doctor, politician, teacher, friend, spouse, etc., at home, at work, at play, stressful situations may bring anger and how we react it to it is a choice we have to make.

HATE MAIL

Yesterday I received an anonymous "hate mail". It was a Christmas card and inside it was a ripped page from a porno magazine and a note that basically said that it was hoped I would get cancer next year (I guess they meant this year). It was sent to me as a lawyer so what does one do when they receive mail like that? Here is what I did:

1. The note was not a death threat but still I called the police. I was instructed to keep the mail, a record was put into the police computer, and if I received one or more, I should contact the police and they would begin an investigation for at that point, the constant sending of such mail would constitute harassment. Here is the NYS Penal Code law on harassment:

"Section 240.25 Harassment in the first degree

A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury. This section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the first degree is a class B misdemeanor.

Section 240.26 Harassment in the second degree

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the second degree is a violation.

Section 240.30 Aggravated harassment in the second degree.

A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or

4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.

Aggravated harassment in the second degree is a class A misdemeanor.

Section 240.31 Aggravated harassment in the first degree.

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or

2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section 240.30 of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section 240.30 or he has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years.

Aggravated harassment in the first degree is a class E felony.

Section 240.32 Aggravated harassment of an employee by an inmate.

An inmate or respondent is guilty of aggravated harassment of an employee by an inmate when, with intent to harass, annoy, threaten or alarm a person in a facility whom he knows or reasonably should know to be an employee of such facility or the division of parole or the office of mental health, or a probation department, bureau or unit or a police officer, he causes or attempts to cause such employee to come into contact with blood, seminal fluid, urine or feces, by throwing, tossing or expelling such fluid or material.

For purposes of this section, "inmate" means an inmate or detainee in a correctional facility, local correctional facility or a hospital, as such term is defined in subdivision two of section four hundred of the correction law. For purposes of this section, "respondent" means a juvenile in a secure facility operated and maintained by the office of children and family services who is place with or committed to the office of children and family services. For purposes of this section, "facility" means a correctional facility or local correctional facility, hospital, as such term is defined in subdivision two of section four hundred of the correction law, or a secure facility operated and maintained by the office of children and family services.

Aggravated harassment of an employee by an inmate is a class E felony."

2. There are federal laws regarding this too. Here is a link to an article that sums it up:

HATE MAIL, ANYONE

To the person who sent it to me, whether you were a client, a prospective client, or someone on the opposing side of a litigation, I am sorry that my actions or inactions caused you so much anger.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The Claimant, as per my instructions, completed the questionnaire and sent that to the DOL with some new documentation that I was not aware of. In the meanwhile, the appeal was still pending.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

This case illustrates the importance of the initial application, the questionnaire and DOL telephone investigations and how conflicting evidence at the ALJ hearing may not be given greater weight than earlier statements given to the DOL:

"In the Matter of the Claim of Clara B. Jensen, 49 A.D.2d 794 (3rd Dept. 1975)

Greenblott, J. P., Kane, Main, Larkin and Reynolds, JJ., concur.

Claimant left her employment on March 1, 1974 and shortly thereafter moved to Florida with her husband who had retired. In her initial claim for benefits she stated that she had voluntarily left her job to move to Florida with her husband and that there was "no compelling reason other than a desire for change of climate and locale". At the referee's hearing claimant contended for the first time that she had been compelled to leave her job for reasons of health, and in support of this contention she submitted a note from a doctor which stated that he had advised claimant to quit her job because she was under great tension, but which did not advise her to relocate to Florida. The board was thus presented with conflicting evidence from which either of two conclusions as to the reasons for claimant's removal from employment could have been reached. In such a situation the "resolution of the conflict as to the cause of appellant's separation from employment" is solely for the board, where, as here, its determination is supported by substantial evidence (Matter of Weber [Catherwood], 32 AD2d 697). The board was properly within its province in finding that claimant's signed statement made upon her application for benefits more accurately reflected the true reasons for her leaving her employment.

Decision affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Just as a brief note, the questionnaire submitted by the DOL (Form TCC 433.9) is a very important document in UI matters, as well as the telephone investigations (which are then transcribed). Here is the second page of the questionnaire submitted by the DOL in response to the Claimant's Request for Redetermination.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The DOL then sent the Claimant a questionnaire. It appeared that the Claimant, in making a re-determination request, stated the reason for the Claimant's unemployment was lack of work. The cover sheet of the questionnaire is set forth here.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Abou one week after I filed the Statement of Appeal, for some reason not known to me, the Claimant made a Request For Reconsideration to the DOL.