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 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

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

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

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

Page 3 of the Statement of Appeal submitted on February 10, 2010.

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

Page 3 of the decision.

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

Page 2 of the decision - all reverse sides of the pages of the decisions set forth the rights to appeal to the Appeal Board and should always be read.

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

Page 1 of the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"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)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

And another leading case on the issue:

"IN RE BAIRD, 54 A.D.3d 466, 862 N.Y.S.2d 415 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance
Appeal Board, filed August 28, 2007, which ruled that
claimant's request for a hearing was untimely.

Laurie G. Baird, Albany, appellant pro se.

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

Before: Mercure, J.P., Spain, Rose, Malone Jr. and Stein,
JJ.

After quitting her part-time job, claimant was terminated
from her full-time job. She applied for unemployment insurance
Page 467
benefits and, on October 17, 2006, the Department of Labor
mailed an initial determination denying her claim. The reverse
side of the initial determination advised claimant that a
request for a hearing had to be made within 30 days of the date
it was mailed. Claimant, however, did not request a hearing
until April 6, 2007. The Commissioner of Labor objected to the
timeliness of the hearing, which was ultimately sustained by
the Unemployment Insurance Appeal Board. Claimant appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant
has 30 days within which to request a hearing after the date of
mailing of the initial determination (see Matter of Ricketts
[Commissioner of Labor], 47 AD3d 1177 [2008]). In the case
at hand, claimant made her request for a hearing well outside
the 30-day time period and did not provide a reasonable excuse
for her delay (see Matter of McCarthy [Commissioner of
Labor], 39 AD3d 993, 993 [2007]; Matter of Palumbos
[Commissioner of Labor], 32 AD3d 1060 [2006]). Therefore,
we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

This is an issue coming up in several cases - the difference between the law and rules regarding a Claimant's request for a hearing and an Employer's request for a hearing.

Let me first begin with the FAQ from the Appeal Board website:

"INFORMATION ABOUT UI HEARINGS:

How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?

The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.

Who can ask for a hearing?

A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits."