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

Of course, I immediately telephone the Claimant. The Claimant lost employment in November 2008. The Claimant applied for unemployment insurance and was denied. Over two years later, in December 2010, unemployment insurance was finally granted. It would be several weeks before Claimant would receive the back benefits. I have not heard from the Claimant since I advised the Claimant of the successful decision. The case was pro bono. But many lessons were learned from this case which I will begin to discuss tomorrow.

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

And finally page 5 of the decision (pages 4 and 6 are the same instructions as page 2).

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

Here is page 3 of the decision.

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

Here is page 2 of the decision.

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

The decision was mailed on December 6, almost 3 weeks after the hearing. Here is page 1 of the decision.

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

The series of questions regarding mental health was an emotional experience for the Claimant. The ALJ also asked a few questions and the hearing ended. It was time to wait for a decision.

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

The hearing did not last long. The ALJ discussed the history of the matter, read the Appeals Board decision and pointed out the issues of the case. I advised the ALJ that I was representing the Claimant on a pro bono basis and introduced the following documents which were accepted into the record:

1. The Claimant's medical history intake form the mental health center.

2. A copy of the Claimant's medications.

3. The certified copy of the other tribunal's dismissal of the misconduct charges.

As the ALJ noted, the key issue was the timeliness of Claimant's request for a hearing and whether the Claimant had cause to file late. Thus, the ALJ wanted testimony that was limited to Claimant's mental condition from January 28, 2009, the date of mailing of the notice of adverse determination, and 30 days thereafter (the time period to file a request for hearing), through March 25, 2009, the date the Claimant actually made a request for hearing. I then began the series of questions to the Claimant that I researched (and that are set forth in my earlier posts) to establish the mental condition of the Claimant during that key period.

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

I also discovered that the Employer was no longer in business and would not attend. This did not affect the case one way or the other: the issue of "misconduct" was already resolved in another tribunal. The main issue was Claimant's mental condition between the date the Claimant received the Notice of Adverse Determination and the date the Claimant sent a Request For Hearing. The ALJ appeared in the waiting room and we were called into the ALJ's hearing office.

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

After I reviewed the tape recording of the prior hearing, the Claimant arrived. We discussed the contents of the tape recording and reviewed the documentation which consisted of:

1. The Claimant's medical history intake form the mental health center.

2. A copy of the Claimant's medications.

3. The certified copy of the other tribunal's dismissal of the misconduct charges.

We also reviewed the list of questions I was going to ask the Claimant based on my research of mental health symptoms.

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

It is now November 18, 2010: the day of the hearing. I arrive early to review the file and confirm that I have all the documents involved. I also listen to the tape recording of the first hearing. If you recall, in order to expedite the appeal, I did not request a transcript so this was the first time I actually got to review what happened at the first hearing. It revealed that the hearing was attended by the Employer, the Claimant and a friend of the Claimant and that the issue of Claimant's mental condition was never discussed. The hearing concentrated on the issue of when Claimant received the Notice of Adverse Determination and when Claimant sent out a Request For Hearing.

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

Here is page 2 of the Instructions.

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

The Notice of Hearing also contains a page of Instructions To Parties. Here is page 1of the Instructions.

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

The next page of the Notice of Hearing - note the Special Instructions which highlights the issues of the hearing. The issues are also set forth on page 3 of the Notice of Hearing (see yesterday's post).

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

Here is page 3 of the Notice of Hearing.

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

Here is page 2 of the Notice of Hearing.

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

As I finished my research, the formal Notice of Hearing came in. The Notice of Hearing is now in a multi page form. Here is page 1.

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

Finally, with respect to Anxiety Disorder, I discovered the following:

"Do you have an anxiety disorder?

If you identify with several of the following signs and symptoms, and they just won’t go away, you may be suffering from an anxiety disorder.

• Are you constantly tense, worried, or on edge?
• Does your anxiety interfere with your work, school, or family responsibilities?
• Are you plagued by fears that you know are irrational, but can’t shake?
• Do you believe that something bad will happen if certain things aren’t done a certain way?
• Do you avoid everyday situations or activities because they make you anxious?
• Do you experience sudden, unexpected attacks of heart-pounding panic?
• Do you feel like danger and catastrophe are around every corner?
Signs and symptoms of anxiety disorders

Because the anxiety disorders are a group of related conditions rather than a single disorder, they can look very different from person to person. One individual may suffer from intense anxiety attacks that strike without warning, while another gets panicky at the thought of mingling at a party. Someone else may struggle with a disabling fear of driving or uncontrollable, intrusive thoughts. Still another may live in a constant state of tension, worrying about anything and everything.

But despite their different forms, all anxiety disorders share one major symptom: persistent or severe fear or worry in situations where most people wouldn’t feel threatened.

Emotional symptoms of anxiety

In addition to the primary symptoms of irrational and excessive fear and worry, other common emotional symptoms of anxiety include:

• Feelings of apprehension or dread
• Trouble concentrating
• Feeling tense and jumpy
• Anticipating the worst
• Irritability
• Restlessness
• Watching for signs of danger
• Feeling like your mind’s gone blank"

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

With respect to post-traumatic stress disorder, I discovered the following:

"Post-traumatic stress disorder symptoms are commonly grouped into three types: intrusive memories, avoidance and numbing, and increased anxiety or emotional arousal (hyperarousal).

Symptoms of intrusive memories may include:

 Flashbacks, or reliving the traumatic event for minutes or even days at a time
 Upsetting dreams about the traumatic event

Symptoms of avoidance and emotional numbing may include:

 Trying to avoid thinking or talking about the traumatic event
 Feeling emotionally numb
 Avoiding activities you once enjoyed
 Hopelessness about the future
 Memory problems
 Trouble concentrating
 Difficulty maintaining close relationships

Symptoms of anxiety and increased emotional arousal may include:

 Irritability or anger
 Overwhelming guilt or shame
 Self-destructive behavior, such as drinking too much
 Trouble sleeping
 Being easily startled or frightened
 Hearing or seeing things that aren't there"

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

With respect to depression, I discovered the following:

"An episode of depression involves five or more of these symptoms most of the day -- nearly every day -- for two weeks or longer:

Symptoms of depression:

• Sadness, anxiety, irritability
• Loss of energy
• Feelings of guilt, hopelessness, or worthlessness
• Loss of interest or enjoyment from things that were once pleasurable
• Difficulty concentrating
• Uncontrollable crying
• Difficulty making decisions
• Increased need for sleep
• Insomnia
• Change in appetite causing weight loss or gain
• Thoughts of death or suicide
• Attempting suicide"

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

My research led me to various medical websites as I began to gather a series of questions. For example, with respect to bipolar disorder, I discovered the following:

"The primary symptoms of bipolar disorder are dramatic and unpredictable mood swings. The illness has two (BI) strongly contrasting phases (polar).

1) bipolar mania or hypo-mania

• euphoria or irritability
• excessive talk; racing thoughts
• inflated self-esteem
• unusual energy; less need for sleep
• impulsiveness, a reckless pursuit of gratification (shopping sprees, impetuous travel, more and sometimes promiscuous sex, high-risk business investments, fast driving)

2) bipolar depression/major depression

• depressed mood and low self-esteem
• low energy levels and apathy
• sadness, loneliness, helplessness, guilt
• slow speech, fatigue, and poor coordination
• insomnia or oversleeping
• suicidal thoughts and feelings
• poor concentration
• lack of interest or pleasure in usual activities

If you have three or more of the mania symptoms below most of the day -- nearly every day -- for one week or longer, you may be having a manic episode of bipolar disorder:

• Excessive happiness, hopefulness, and excitement
• Sudden changes from being joyful to being irritable, angry, and hostile
• Restlessness, increased energy, and less need for sleep
• Rapid talk, talkativeness
• Distractibility
• Racing thoughts
• High sex drive
• Tendency to make grand and unattainable plans
• Tendency to show poor judgment, such as deciding to quit a job
• Inflated self-esteem or grandiosity -- unrealistic beliefs in one's ability, intelligence, and powers; may be delusional
• Increased reckless behaviors (such as lavish spending sprees, impulsive sexual indiscretions, abuse of alcohol or drugs, or ill-advised business decisions)

Some people with bipolar disorder become psychotic, hearing things that aren't there. They may hold onto false beliefs, and cannot be swayed from them. In some instances, they see themselves as having superhuman skills and powers -- even consider themselves to be god-like."

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

Again, the key issue was the Claimant's mental condition from January 28, 2009, the date of mailing of the notice of adverse determination, and 30 days thereafter (the time period to file a request for hearing), through March 25, 2009, the date the Claimant actually made a request for hearing. Thus my theory was that through a series of questions to the Claimant, based upon the mental condition history that was set forth in the medical record sent, I could establish the mental condition of the Claimant during that key period. And so began my research into the area of how to diagnose certain mental health issues.

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

The medical records that were sent to me revealed that the Claimant did not seek treatment for the Claimant's mental health issues until about a year after the Claimant made a request for hearing. That, at first, seemed to be a major blow to the case, but the medical records sent, although not complete, did reveal the mental condition and mental history of the Claimant since the Claimant was a teenager.

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

The key issue was the Claimant's mental condition from January 28, 2009, the date of mailing of the notice of adverse determination, and 30 days thereafter (the time period to file a request for hearing), through March 25, 2009, the date the Claimant actually made a request for hearing. What did the medical records sent reveal?

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

And on November 2, 2010, the mental health center finally sent me some records regarding the Claimant. Here is the cover fax page.

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

At around the same time, the ALJ office wanted to schedule a new hearing date and, after checking my calendar, a date was agreed to: November 18, 2010.

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

The Appeal Board website also has a list of various Appeal Board decisions, etc. which I also researched:

"1010. Timeliness

Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)

A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)

A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)

A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)

An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)

The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)

An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)

A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)

Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)

When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)

Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)

In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)"

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

Another case:

IN MATTER OF DAVIS v. COMM. OF LABOR [3d Dept 9-23-2010]
2010 NY Slip Op 06682, 907 N.Y.S.2d 434

Decided and Entered: September 23, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed February 26, 2010, which ruled that claimant's request for a
hearing was untimely.

Nathaniel K. Davis, East Patchogue, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Steven Koton of
counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a certified nurse's aide for an assisted living facility, was
terminated from employment for failing to disclose his criminal history
on his job application. Thereafter, he applied for unemployment insurance
benefits and the Department of Labor, finding that claimant lost his
employment due to misconduct, denied his claim by initial determination
dated August 5, 2009. In response, claimant did not send a letter
requesting a hearing until September 23, 2009. Following a hearing, the
Unemployment Insurance Appeal Board sustained the Commissioner of Labor's
timeliness objection and upheld the initial determination. Claimant now
appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant who is
dissatisfied with an initial determination must request a hearing within
30 days of the date that it was mailed, unless prevented from doing so by
physical or mental incapacity (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]). Here, inasmuch as claimant admittedly mailed his
request for a hearing outside the 30-day time period and failed to
proffer an acceptable excuse for the delay, we find no basis for
disturbing the Board's decision (see Matter of Wright [Commissioner of
Labor], 71 AD3d at 1324; Matter of Baird [Commissioner of Labor],
54 AD3d 466, 467 [2008]).

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

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

The next step was to research recent cases from the Appellate Division, 3rd Department. One case:

IN MATTER OF ADJEKUM v. COMMR. OF LABOR, 508798 [3d Dept 9-30-2010]
2010 NY Slip Op 06741

Decided and Entered: September 30, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed April 7, 2009, which ruled that claimant's request for a hearing
was untimely.

Robert Adjekum, Perth Amboy, New Jersey, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile of
counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

The Department of Labor issued a notice of determination dated October
9, 2008 disqualifying claimant from receiving unemployment insurance
benefits on the ground that he lost his employment due to misconduct.
Claimant responded by letter dated November 23, 2008 protesting the
notice of determination. Following a hearing, an Administrative Law Judge
sustained the Commissioner of Labor's timeliness objection, and that
decision was upheld by the Unemployment Insurance Appeal Board. Claimant
appeals.

We affirm. "Labor Law § 620 (1) (a) provides that a claimant aggrieved
by a notice of determination has 30 days from the date of the mailing of
such notice to request a hearing, unless the claimant suffers from a
physical or mental condition preventing a timely request, in which case
the period may be extended" (Matter of Walker [Commissioner of Labor],
23 AD3d 752, 753 [2005] [citation omitted]; see Matter of Pelli
[Commissioner of Labor], 35 AD3d 930 [2006]). Here, it is undisputed that
claimant did not request a hearing within the requisite 30-day period
despite the instructions on the back of the notice of determination.
While he offered a variety of excuses for his omission, including that he
was out of the country, suffered from high blood pressure and was
experiencing financial difficulties, claimant failed to submit compelling
proof demonstrating that he suffered from a physical or mental condition
that prevented him from complying with the statute. Accordingly, the
Board properly concluded that the hearing request was untimely, and the
merits of his disqualification are not properly before this Court
(see Matter of McCarthy [Commissioner of Labor], 39 AD3d 993, 993-994
[2007]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.