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.

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.