UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Finally, in the beginning of May, I was advised by the Appeals Board that the appeal was assigned to an Appeal Board member but no decision yet. I so advised the client.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

It is now mid April: the time period for a response from the Employer or the DOL has passed, assuming the time periods ran from the date of the Amended Notice of Appeal (March 2) and no reply has been received. It appears that the appeal is not being contested but still a decision must be reached. I contact the Appeals Board and they advise me it has not yet been assigned to an Appeals Board member.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

This is what happens after I submitted the additional documentation. Remember, this is from the Appeals Board Rules:

"463.1 (f)(3) ................ An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.

.......

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party."

This is also on the back of the Notice of Receipt of Appeal (earlier blog). But I submitted the additional documentation based upon the following rule:

"Section 463.2 Conduct of appeal.

(a) The board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the appeal and any hearing thereon in such order and manner and with such methods of proof and interrogation as it deems best suited to ascertain the substantial rights of the parties."

You will also recall that when I submitted my original statement (earlier blog), I had the following language:

"I also request that, if the Appeals Board deems the attached insufficient, I be given additional time to submit additional documentation regarding the physical condition and mental capacity of XXXXXXXXXXXXX and other documentation establishing XXXXXX reasonable excuse for the delay in timely filing a request for hearing."

But it appeared I only got "one bite at the apple"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Thus I made a resubmission of my original documents with the additional documentation I sent on February 27th under the theory I was presenting this submission under the Amended Notice of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Then, I received a document from the Appeals Board, another Notice of Receipt of Appeal, marked Amended, which was dated March 2.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

For some reason, the Appeals Board did not send me the Notice of Receipt of Appeal but I was already familiar with the Appeal Board rules. From earlier blogs on this case, you will note that because the Claimant was homeless, I decided to forgo a reading of the transcript and speed up the appeal process by filing my Statement of Appeal on February 11. When I received from the Client the first page of the Notice of Receipt of Appeal and some other documents, I attempted to send them to the Appeals Board on February 27.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

This is the reverse side of a Notice of Receipt of Appeal. If you note on an earlier blog, the front states at the bottom in bold "READ IMPORTANT INFORMATION ON THE REVERSE"

HAPPY NEW YEAR

L'Shanah tovah and a Happy and a Healthy New Year to all of those celebrating the coming of the New Year.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Now here's an interesting twist. Remember, I filed a Notice of Appeal (earlier blog) on February 2 and a Statement on Appeal (earlier blog) on February 11. After that date, the Client sent me by fax the first page only of the Appeal Board's Notice of Receipt of Appeal dated February 5. See above.

BACK TO WORK

I hope everyone had a wonderful Labor Day!

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

The Appeal Board rules clearly state at 463.1: "Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party." It further provides: "Any party may make a written request for an extension of the above time limits to submit a statement, document, brief or reply. The request must give the specific reasons why the time limit cannot be met. Extensions will only be granted if the request establishes good cause to excuse the delay. Unless an extension has been granted, any submission mailed after the times specified here shall be returned to the party."

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

After I filed my statement on appeal on February 11, the Claimant sent me some additional documentation. The question was now - what should I do with these new documents and evidence?

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

In this matter, I did not request a transcript - the reason being is that:

1. This involves an additional delay in the appeal process. The Claimant was homeless and I was trying to speed up the process.

2. It was clear to me from the decision that I would not get anything from the transcript - but this can sometimes be dangerous especially if you, as an attonrey, did not attend the hearing.

Thus, on February 11, six days after filing the notice, I submitted my statement on appeal which had the following introduction (this was done my legal letterhead):

"February 11, 2010

UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: APPEAL CASE NO XXXXXX: IN RE: XXXXXXXXXXXXXX

Gentleman:

I am representing XXXXXXXXXXX.

I hereby request that the attached documents and this letter be considered in
connection with this appeal. I also request that, if the Appeals Board deems the
attached insufficient, I be given additional time to submit additional
documentation regarding the physical condition and mental capacity of XXXXXXXXXXXXX and other documentation establishing XXXXXX reasonable excuse for the delay
in timely filing a request for hearing."

I then began my arguments, cited my case law, etc.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Now of course prior to the filing of the Notice of Appeal, I contacted the Claimant to ascertain the full story. In summary, the administrative law decision denied Claimant a hearing on the grounds of timeliness. Claimant ostensibly filed the request on March 29 instead of by March 4 - about a 25 day delay. However, what the administrative law judge did not consider, because of the Claimant's mental condition, was that as a result of the employer’s actions taken in discharging the Claimant, the criminal complaint filed against the Claimant required by law, the Claimant's inability to get work until the criminal matter was resolved, etc., the Claimant became homeless, went and still is under psychological care, was and still is on psychiatric medications and is now living in hotel shelters in Nassau County. The Claimant's only address is a post office box. So I asked the Claimant to supply me with a written explanation of the Claimant's circumstances which was not addressed at the hearing, and supporting documentation.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

This copy did not come out clearly but here is the Notice of Appeal I filed. Do note that it was filed immediately, February 2, well within the statutory period.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Although technically I could have also made an application to reopen under Section 463.6 of the Appeal Board rules, I chose to file a Notice of Appeal to the Appeals Board under Section 463.1. Here are the two statutes involved:

"Section 463.6 Reopening.

(a) On its own motion or on application duly made to it, the board, in its discretion, may reopen a decision.

(b) On its own motion or on application duly made to it, the board, pursuant to section 534 of the law, may modify or rescind its order, decision or determination. If an application for such reopening is not received by the board or postmarked within 30 days after such order, decision or determination, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may, without further notice to the parties, deny the application by an order which shall be sent to all parties. If an application is not denied by an order of the board for this reason, notice of reopening or notice or receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may adhere to, modify or rescind its prior decision or may deny the application to reopen.

(c) On its own motion or on application duly made to it, the board, pursuant to subdivision 3 of section 620 of the law, may modify or rescind an administrative law judge decision, where no appeal was duly taken. If an application for such a reopening is not received by the board or postmarked within 25 days after the administrative law judge decision, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may hold a hearing, upon due notice to all parties, regarding the timeliness of the request for the board to reconsider the administrative law judge decision. The board may, without further notice to the parties, dismiss the appeal or deny the application by an order which shall be sent to all parties. If an application is not thus dismissed or denied, notice of reopening or notice of receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may affirm, modify or reverse the administrative law judge decision or may deny the application to reopen.

(d) Whenever the board reopens a decision pursuant to this section, it shall state the reasons therefor in its decision.

Section 463.1 Notice of appeal.

(a) Generally. In any notice of appeal, the party appealing should state the reasons therefor.

(b) By claimant. A claimant may appeal, pursuant to section 621, subdivision 1 of the law, by filing a notice of appeal at the designated local office, or at any office of the administrative law judge section, or at the office of the appeal board, within 20 days after the mailing or personal delivery of the administrative law judge decision.

......................."

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Of course, the first thing one must do when in receipt of an adverse notice of decision is, after reading the decision, read the back for instructions regarding appeal, etc.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

This is how the case first came to me: a friend of the Claimant advised me that the Claimant was hopeless and was denied Unemployment Insurance and asked if I could help. I asked for a copy of the decision, which is reproduced here.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Well every case starts with an employment and a termination. In this first case scenario: the Claimant was a home health aide - in the fall of 2008, a patient made a claim of physical abuse and a criminal complaint for endangering an incomptent person was filed. Claimant was immediately terminated.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

The next issue to be discussed will be from a case I am currently working on now on appeal.