Mendes v. Administrator, Unemployment Compensation Act

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JOHN P. MENDES v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT ET AL.
(AC 42442)
Alvord, Elgo and Bright, Js.
Syllabus
The defendant administrator of the Unemployment Compensation Act
appealed to this court from the judgment of the Superior Court sustaining
the plaintiff’s appeal from the decision of the Board of Review of the
Employment Security Appeals Division, which affirmed the determina-
tion by an appeals referee that the plaintiff was not entitled to certain
unemployment benefits. The plaintiff, who had been employed by A
Co., had been found eligible for unemployment benefits by the adminis-
trator. A Co. appealed from that decision, and the appeals referee,
following a hearing, reversed the decision of the administrator to award
benefits to the plaintiff. The plaintiff, who did not attend the hearing
before the appeals referee, thereafter filed a motion to open the referee’s
decision, arguing that he had not received notice of the hearing. The
referee denied the plaintiff’s motion on the ground that he had not
established good cause for his failure to participate in the hearing,
finding that, the notice had been properly mailed to the plaintiff at his
usual address where he had received all other notices, the notice had
not been returned as undeliverable, and the plaintiff had admitted that
he may have inadvertently discarded the notice. The board subsequently
affirmed the decision of the referee, concluding that the evidence sup-
ported the referee’s findings and conclusion. Thereafter, the plaintiff
appealed to the Superior Court, which found that there was no evidence
that the defendant had properly mailed notice of the hearing before the
appeals referee and remanded the case for a de novo appeal hearing
before the referee. Held that the Superior Court exceeded its scope of
authority by assessing the factual findings of the referee, as adopted by
the board, and determining that because there was no evidence to
support the referee’s findings, the board had acted unreasonably, ille-
gally, or in abuse of its discretion by denying the plaintiff’s motion to
open; in an appeal from the decision of the board, the trial court is
bound by the board’s factual findings and, therefore, it was improper
for the trial court to review the subordinate findings of the referee,
which had been adopted by the board, in the absence of the plaintiff’s
filing a motion to correct pursuant to the applicable rule of practice
(§ 22-4); moreover, the evidence supported the referee’s factual findings
that notice had been properly mailed to the plaintiff at his address of
record and received by the plaintiff and, therefore, the board acted
properly in accepting those findings and affirming the referee’s decision.
Submitted on briefs April 15—officially released July 14, 2020
Procedural History
Appeal from the decision of the Board of Review of
the Employment Security Appeals Division affirming
the decision by an appeals referee that the plaintiff was
not entitled to certain unemployment compensation
benefits, brought to the Superior Court in the judicial
district of New Haven and tried to the court, Hon. Jon
C. Blue, judge trial referee; judgment sustaining the
appeal and remanding the case for further proceedings,
from which the named defendant appealed to this court.
Reversed; judgment directed.
Krista D. O’Brien and Philip M. Schulz, assistant
attorneys general, and William Tong, attorney general,
filed a brief for the appellant (named defendant).
John P. Mendes, self-represented, filed a brief as the
appellee (plaintiff).
Opinion
BRIGHT, J. The defendant Administrator of the
Unemployment Compensation Act (administrator)1
appeals from the judgment of the Superior Court sus-
taining the appeal of the plaintiff, John P. Mendes, from
the decision of the Board of Review of the Employment
Security Appeals Division (board), which had dismissed
the plaintiff’s appeal from the decision of the referee
at the Employment Security Appeals Division (referee).
In short, the Superior Court concluded that the board
had no evidence that the defendant had mailed notice
to the plaintiff of a January 16, 2018 appeal hearing
before the referee, and that the plaintiff, therefore, was
entitled to a de novo hearing before the referee. On
appeal, the defendant claims this was error. We agree
and, accordingly, reverse the judgment of the Supe-
rior Court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s appeal. The
defendant determined that the plaintiff was eligible for
unemployment benefits effective October 22, 2017, and,
on November 7, 2017, notified the plaintiff’s former
employer, A & E Glass (employer), of its chargeability.
Two days later, the employer appealed to the referee
from the defendant’s decision. On January 16, 2018, the
referee conducted a hearing, at which the employer
appeared but the plaintiff did not. On January 17, 2018,
the referee reversed the defendant’s decision to award
benefits to the plaintiff, and, on February 6, 2018, the
plaintiff timely filed a motion to open the referee’s deci-
sion on the ground that he had not received notice of
the January 16, 2018 hearing.
On February 16, 2018, the referee conditionally
granted the motion to open and, on May 14, 2018, she
held a hearing on the issue of notice, in which both the
employer and the plaintiff participated. In a May 29,
2018 decision, the referee found that staff at the appeals
division of the defendant, on January 3, 2018, properly
had mailed the January 16, 2018 hearing notice to the
plaintiff at his usual address where he had received all
other notices, and that the notice had not been returned
as undeliverable. She further found that that the plain-
tiff, on the basis of his own admission, may have dis-
carded that notice, inadvertently. She found that the
plaintiff’s receipt of all other notices that had been
mailed to the same address as the notice in question,
and the plaintiff’s admission that he inadvertently may
have discarded the notice in question, ‘‘belie the [plain-
tiff’s] claim of nonreceipt.’’ Consequently, she found
that the plaintiff had failed to establish good cause for
opening her decision and granting a rehearing, and she,
therefore, denied the plaintiff’s motion to open and
reinstated her January 17, 2018 decision. On June 15,
2018, the plaintiff timely filed an appeal to the board
on the ground that he ‘‘disagree[d] with the referee’s
decision because [he] was not aware of [his] original
hearing date of January 16, 2018.’’ On July 20, 2018, the
board affirmed the decision of the referee, concluding
that the evidence supported the referee’s findings and
conclusion. On August 20, 2018, the plaintiff appealed
to the Superior Court. The plaintiff did not file a motion
to correct the board’s findings pursuant to Practice
Book § 22-4.2
In a December 20, 2018 memorandum of decision,
the court, relying on the mailbox rule,3 reasoned that
the failure of the plaintiff to file a motion to correct
the board’s findings was not fatal to his claim because
the board had acted unreasonably, arbitrarily, illegally
or in abuse of its discretion when it affirmed the deci-
sion of the referee because there was no evidence that
the defendant properly had mailed notice of the refer-
ee’s January 16, 2018 hearing to the plaintiff at his
address of record. The court held, in relevant part, that
the ‘‘evidentiary basis for the referee’s finding nowhere
appears. The only parties appearing at the hearing to
address the issues raised by the [plaintiff’s] motion were
[the plaintiff] and his employer. . . . Neither of those
parties could possibly have had any knowledge of the
circumstances of mailing of the notice by the Middle-
town Appeals Division office staff.’’ (Citation omitted.)
The court also explained: ‘‘The lack of an evidentiary
basis for the findings . . . is alone dispositive of the
present appeal. . . . The record in this case reveals no
evidence for the finding of notice in question.’’ (Citation
omitted; emphasis omitted.) Accordingly, the court
reversed the decision of the board, and remanded the
case for a de novo appeal hearing before the referee.
This appeal followed. Facts and additional procedural
history will be set forth as necessary.
We first set forth the general principles regarding an
appeal involving unemployment compensation. ‘‘In the
processing of unemployment compensation claims
. . . the administrator, the referee and the [board]
decide the facts and then apply the appropriate law.
. . . [The administrator] is charged with the initial
responsibility of determining whether claimants are
entitled to unemployment benefits. . . . This initial
determination becomes final unless the claimant or the
employer files an appeal within twenty-one days after
notification of the determination is mailed. . . .
Appeals are taken to the employment security appeals
division which consists of a referee section and the
board of review. . . . The first stage of claims review
lies with a referee who hears the claim de novo. The
referee’s function in conducting this hearing is to make
inquiry in such manner, through oral testimony or writ-
ten and printed records, as is best calculated to ascer-
tain the substantial rights of the parties and carry out
justly the provisions . . . of the law. . . . This deci-
sion is appealable to the board . . . . Such appeals are
heard on the record of the hearing before the referee
although the board may take additional evidence or
testimony if justice so requires. . . . Any party, includ-
ing the administrator, may thereafter continue the
appellate process by appealing to the Superior Court
and, ultimately, to [the Appellate and Supreme
Courts]. . . .
‘‘The standard of review for judicial review of this
type of case is well established. In appeals under . . .
[General Statutes] § 31-249b, the Superior Court does
not retry the facts or hear evidence but rather sits as
an appellate court to review only the record certified
and filed by the board of review. . . . The court is
bound by the findings of subordinate facts and reason-
able factual conclusions made by the appeals referee
where, as here, the board . . . adopted the findings
and affirmed the decision of the referee. . . . Judicial
review of the conclusions of law reached administra-
tively is also limited. The court’s ultimate duty is only
to decide whether, in light of the evidence, the board
. . . has acted unreasonably, arbitrarily, illegally, or in
abuse of its discretion. . . . Nonetheless, issues of law
afford a reviewing court a broader standard of review
when compared to a challenge to the factual findings
of the referee.’’ (Citations omitted; internal quotation
marks omitted.) Seward v. Administrator, Unemploy-
ment Compensation Act, 191 Conn. App. 578, 584–85,
215 A.3d 202 (2019); see also General Statutes § 31-222
et seq. A plaintiff’s ‘‘failure to file a timely motion for
correction of the board’s findings in accordance with
[Practice Book] § 22-4 prevents further review of those
facts found by the board.’’ JSF Promotions, Inc. v.
Administrator, Unemployment Compensation Act,
265 Conn. 413, 422, 828 A.2d 609 (2003).
In this appeal, the defendant claims that the Superior
Court ‘‘clearly exceeded its authority when it disre-
garded the [board’s] factual findings, credibility deter-
minations, and conclusions of law that the plaintiff
failed to demonstrate good cause for his failure to attend
the referee’s hearing because the . . . court found
inadequate notice, and ordered another de novo hearing
on the merits.’’ (Emphasis in original.) He argues: ‘‘[I]n
light of all the evidence, and in the absence of a motion
to correct, the . . . court rejected the board’s conclu-
sion that the plaintiff received the hearing notice
because the . . . court determined that ‘this case
reveals no evidence for the finding of notice in question’
. . . . [The court] . . . failed to afford the proper def-
erence to the board with respect to determining
whether . . . a claimant received notice of [a] . . .
hearing.’’ (Emphasis in original.) We agree.
The following facts, as revealed by the record or as
found by the referee and adopted by the board, assist
with our review. After the defendant found the plaintiff
eligible for benefits, the employer appealed to the ref-
eree. In the file maintained by the defendant, there is a
document entitled ‘‘notice of hearing before a referee.’’
That document provides that, on January 3, 2018, it was
mailed to the plaintiff at his address of record, the
employer, and the president of the employer, notifying
them that there was an appeal hearing scheduled for
Tuesday, January 16, 2018, at 11 a.m., in Middletown.
The defendant attended that January 16, 2018 hearing,
but the plaintiff did not attend. The referee, thereafter,
rendered a decision in which she reversed the defen-
dant’s decision to award benefits to the plaintiff.4 After
receiving notice of the referee’s decision, the plaintiff
filed a motion to open on the ground that he had not
received notice of the January 16, 2018 appeal hearing.5
At the hearing on the motion to open, the plaintiff admit-
ted that it was possible that he inadvertently had thrown
away the notice, thinking it was junk mail. The referee
found that notice had been sent to the plaintiff at his
address of record, that he had received all other notices
at the address, that he had received this notice, and
that he, therefore, failed to prove that there was good
cause for her to open and change her decision. The
board later adopted the referee’s findings and affirmed
her decision. In particular, the board concurred in the
referee’s determination that the plaintiff had failed to
submit credible evidence that he had not received the
referee’s hearing notice, and that he failed to establish
good cause to open the referee’s decision and to rehear
the case. The plaintiff then appealed to the Superior
Court without filing a motion to correct the board’s
findings pursuant to Practice Book § 22-4.
The Superior Court, relying on the mailbox rule and
Cragg v. Administrator, Unemployment Compensa-
tion Act, 160 Conn. App. 430, 437, 125 A.3d 650 (2015),
reasoned that the failure of the plaintiff to file a motion
to correct the board’s findings was not fatal to his claim
because the board had acted unreasonably, arbitrarily,
illegally or in abuse of its discretion when it affirmed the
decision of the referee because there was no evidence
in the record to support the referee’s finding that the
defendant properly had mailed notice of the January
16, 2018 hearing. The court reviewed the record of the
hearing on the motion to open and concluded that there
was no one present at that hearing who was competent
to testify that the defendant properly had mailed notice
to the plaintiff. We conclude that the court was bound
by the factual findings of the board because the plaintiff
failed to file a motion to correct those findings. See
Practice Book § 22-4 (‘‘[i]f the appellant desires to have
the finding of the board corrected, he or she must,
within two weeks after the record has been filed in the
Superior Court . . . file with the board a motion for
the correction of the finding’’); JSF Promotions, Inc.
v. Administrator, Unemployment Compensation Act,
supra, 265 Conn. 422 (in absence of Practice Book § 22-
4 motion to correct, ‘‘board’s factual findings are not
subject to further review by this court or by the trial
court’’).
Pursuant to General Statutes § 31-249b: ‘‘In any
appeal, any finding of the referee or the board shall be
subject to correction only to the extent provided by
section 22-9 of the Connecticut Practice Book.’’6 In
Cragg, this court stated that, when considering an
appeal from the board, ‘‘[a] plaintiff’s failure to file
a timely motion [to correct] the board’s findings in
accordance with [Practice Book] § 22-4 prevents fur-
ther review of those facts found by the board. . . . In
the absence of a motion to correct the findings of the
board, the court is not entitled to retry the facts or
hear evidence. It considers no evidence other than that
certified to it by the board, and then for the limited
purpose of determining whether . . . there was any
evidence to support in law the conclusions reached.’’
(Emphasis added; internal quotation marks omitted.)
Cragg v. Administrator, Unemployment Compensa-
tion Act, supra, 160 Conn. App. 437. ‘‘[The court] cannot
review the conclusions of the board when these depend
upon the weight of the evidence and the credibility of
witnesses . . . . Practice Book § 22-9 [(a)].’’ (Internal
quotation marks omitted.) Id., 444. On the basis of this
quoted language, without analyzing the meaning of that
language, the Superior Court focused on the question of
whether there was any evidence to support the referee’s
factual findings that notice of the January 16, 2018 hear-
ing properly had been mailed to the plaintiff and that
he had received that notice, and it concluded there was
no such evidence.
In its memorandum of decision, the court did not
discuss JSF Promotions, Inc., or other appellate level
cases, including Cragg, that have applied the prohibi-
tion on reviewing factual findings made by the referee
and the board in the absence of a § 22-4 motion to
correct. See, e.g., Seward v. Administrator, Unemploy-
ment Compensation Act, supra, 191 Conn. App. 586(‘‘‘In an appeal to the court from a decision of the board,
the court is not to find facts. . . . In the absence of a
motion to correct the finding of the board, the court is
bound by the board’s finding.’ ’’); Ray v. Administrator,
Unemployment Compensation Act, 133 Conn. App. 527,
533, 36 A.3d 269 (2012) (same); Belica v. Administrator,
Unemployment Compensation Act, 126 Conn. App. 779,
786, 12 A.3d 1067 (2011) (failure to file timely motion
for correction of board’s findings in accordance with
Practice Book § 22-4 prevents further review of facts
found by board); Shah v. Administrator, Unemploy-
ment Compensation Act, 114 Conn. App. 170, 176, 968
A.2d 971 (2009) (failure to file timely motion for correc-
tion was determinative of appeal); Kaplan v. Adminis-
trator, Unemployment Compensation Act, 4 Conn.
App. 152, 153, 493 A.2d 248 (Superior Court does not
try appeal de novo, and its function is not to adjudicate
questions of fact), cert. denied, 197 Conn. 802, 495 A.2d
281 (1985). Instead, the trial court proceeded to exam-
ine the record of the May 14, 2018 hearing to see if
the referee’s subordinate factual findings, which were
adopted by the board, had an evidentiary foundation.
We conclude that the Superior Court exceeded the
permitted scope of review by assessing the factual find-
ings of the referee, as adopted by the board. The court,
then, reversed the decision of the board and remanded
the case for a de novo hearing before the referee on
the employer’s appeal from the defendant’s initial award
of benefits to the plaintiff. This was improper. The ref-
eree made specific factual findings, including that staff
at the appeals division had mailed the notice to the
plaintiff’s address of record, where he, admittedly, had
received all previous notices, that the plaintiff had
received the mailed notice, and that he may have thrown
it away, inadvertently, thinking it was junk mail. The
board adopted those factual findings, concluding that
they were supported by the evidence, and that the refer-
ee’s ultimate finding—that the plaintiff had failed to
establish good cause to open her decision and to rehear
the case—was consistent with those factual findings.
The plaintiff did not file a motion to correct those fac-
tual findings or the board’s ultimate finding. The Supe-
rior Court, therefore, was bound by the factual findings
and was called on to assess only whether the board’s
ultimate finding, namely, whether the plaintiff had failed
to establish good cause, was reasonable and logical in
light of the factual findings.
Our Supreme Court’s holding in JSF Promotions,
Inc., is clear that, in the absence of a Practice Book
§ 22-4 motion to correct, the Superior Court is bound
by the factual findings of the board. JSF Promotions,
Inc. v. Administrator, Unemployment Compensation
Act, supra, 265 Conn. 422 (in absence of motion to
correct findings, ‘‘board’s factual findings are not sub-
ject to further review by . . . the trial court’’). Never-
theless, in the present case, the Superior Court, instead
of accepting the referee’s factual findings, considered
who attended the hearing on the motion to open and
concluded that there was no one in attendance at the
hearing who was competent to testify that notice prop-
erly had been mailed to the plaintiff and that the refer-
ee’s factual finding had no basis in evidence. We con-
clude that this was beyond the court’s permitted scope
of review.
Furthermore, notwithstanding the Supreme Court’s
holding in JSF Promotions, Inc., and the many appellate
level cases to have discussed this issue, we also have
reviewed the evidence in this case, and we conclude
that there was evidence to support the referee’s factual
findings that notice properly had been mailed to the
plaintiff at his address of record and that he received
such notice.
General Statutes § 31-244a provides: ‘‘The conduct of
hearings and appeals, including notice thereof, shall be
in accordance with rules of procedure prescribed by
the board in regulations adopted pursuant to section
31-237g.7 No formal pleadings shall be required beyond
such notices as the board provides for by its rules of
procedure. The referees and the board shall not be
bound by the ordinary common law or statutory rules
of evidence or procedure. They shall make inquiry in
such manner, through oral testimony and written, elec-
tronic and printed records, as is best calculated to
ascertain the substantial rights of the parties and carry
out justly the provisions of this chapter. A record shall
be prepared of all testimony and proceedings at any
hearing before a referee and before the board but need
not be transcribed unless an appeal is taken from the
referee’s or board’s decision, as the case may be.’’
(Emphasis added; footnote added.)
Section 31-237g-30 of the Regulations of Connecticut
State Agencies provides in relevant part: ‘‘(a) The Ref-
eree shall hear the case de novo, and shall not be bound
by the previous decision of the administrator. The Ref-
eree shall conduct and control the hearing informally
and shall not be bound by the ordinary common law
or statutory rules of evidence or procedure. The Referee
shall make inquiry in such manner, through oral testi-
mony and written and printed records, and take any
action consistent with the impartial discharge of his
duties, as is best calculated to ascertain the relevant
facts and the substantial rights of the parties, furnish
a fair and expeditious hearing, and render a proper and
complete decision. . . .
‘‘(c) The hearing shall be confined to the issues which
the notice of hearing issued pursuant to Section 31-237g-
17 (e) of these regulations indicates may be covered at
the hearing. The hearing may also cover, at the discre-
tion of the Referee, any separate issue which the parties
are prepared and willing to go forward on and on which
they expressly waive right to notice of. . . .
‘‘(e) The relevant Administrator’s documents in the
file record shall be considered as evidence by the Ref-
eree subject to the right of any party to object to the
introduction of such documents or any part of such
documents. . . .’’ (Emphasis added.)
In the present case, in accordance with the relevant
regulations cited, the ‘‘notice of hearing before a ref-
eree’’ was evidence sufficient to demonstrate that the
defendant properly mailed to the plaintiff, at his address
of record, notice of the January 16, 2018 appeals hear-
ing. There was no need for the testimony of the person
who had mailed the document because no one had
objected to the referee’s consideration of the docu-
ments in the file. As a matter of fact, the plaintiff has
never contested whether the notice properly had been
mailed; he has contested only his receipt of it. Once
this evidence was considered, and the plaintiff failed
to rebut it, instead admitting that he may have received
the notice and then discarded it, inadvertently, thinking
it was junk mail, the referee certainly had the authority
to make the factual findings that staff of the appeals
division had mailed the notice to the plaintiff and that
the plaintiff had received the notice. Thereafter, the
board acted properly in accepting those findings and
affirming the referee’s decision.
The judgment is reversed and the case is remanded
with direction to render judgment affirming the decision
of the board.
In this opinion the other judges concurred.
1
Also named as defendants in the Superior Court were the Board of
Review of the Employment Security Appeals Division and A & E Glass, the
former employer of the plaintiff.
2
Practice Book § 22-4 provides: ‘‘If the appellant desires to have the finding
of the board corrected, he or she must, within two weeks after the record
has been filed in the Superior Court, unless the time is extended for cause
by the board, file with the board a motion for the correction of the finding
and with it such portions of the evidence as he or she deems relevant and
material to the corrections asked for, certified by the stenographer who
took it; but if the appellant claims that substantially all the evidence is
relevant and material to the corrections sought, he or she may file all of it,
so certified, indicating in the motion so far as possible the portion applicable
to each correction sought. The board shall forthwith upon the filing of the
motion and of the transcript of the evidence, give notice to the adverse
party or parties.’’
3
Under the mailbox rule, ‘‘a properly stamped and addressed letter that
is placed into a mailbox or handed over to the United States Postal Service
raises a rebuttable presumption that it will be received.’’ Echavarria v.
National Grange Mutual Ins. Co., 275 Conn. 408, 418, 880 A.2d 882 (2005).
4
Section 31-237g-26 of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(c) If the appealing party appears at a scheduled
hearing, but any non-appealing party fails to appear, the Referee shall pro-
ceed with the hearing and take the testimony, evidence, and argument put
forward by those present, consider the documentary record established by
the Administrator and thereafter issue a decision on the merits of the appeal
provided that the Referee may reschedule the hearing if the Referee deter-
mines that good cause exists for doing so. . . .
‘‘(g) For purposes of this section, good cause shall include such factors
listed in Section 31-237g-15 (b) of these regulations as may be relevant to
a party’s failure to appear.’’
Section 31-237g-15 (b) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘[T]he Referee shall consider all relevant factors,
including but not limited to:
‘‘(i) The extent to which the party has demonstrated diligence in its
previous dealings with Administrator and the Employment Security
Appeals Division;
‘‘(ii) Whether the party was represented;
‘‘(iii) The degree of the party’s familiarity with the procedures of the
Appeals Division;
‘‘(iv) Whether the party received timely and adequate notice of the need
to act;
‘‘(v) Administrative error by the Administrator or Employment Security
Appeals Division; or the failure of the Administrator, the Appeals Division,
or any other party to discharge its responsibilities;
‘‘(vi) Factors outside the control of the party which prevented a timely
action;
‘‘(vii) The party’s physical or mental impairment;
‘‘(viii) Whether the party acted diligently in filing an appeal once the
reason for the late filing no longer existed:
‘‘(ix) Where there is substantial prejudice to an adverse party which
prevents such party from adequately presenting its case, the total length of
time that the action was untimely;
‘‘(x) Coercion or intimidation which prevented the party from promptly
filing its appeal.
‘‘(xi) Good faith error, provided that in determining whether good faith
error constitutes good cause the Referee shall consider the extent of preju-
dice to any other party, any prior history of late filing due to such error,
whether the appeal is excessively late, and whether the party otherwise
acted with due diligence.’’
5
Section 31-237g-35 of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(a) The Referee may, within the time limits set
forth in Section 31-237g-34 above, reopen, vacate, set aside or modify a
decision on an appeal if the Referee determines, for good cause shown, that
new evidence or the ends of justice so require. . . .
‘‘(c) No hearing shall be held upon such motions unless the Referee
determines that good cause exists for such a hearing, except that no such
motion shall be dismissed as untimely without a hearing if the motion recites
a reason for the untimely filing that would constitute good cause pursuant
to Section 31-237g-15 of these regulations. The Referee shall, with reasonable
promptness, review each such motion and issue a written decision thereon.
The Referee’s decision on any such motions shall be prepared and delivered
in accordance with Section 31-237g-13 (a) of these regulations and shall
include a statement as to the reasons for the decision. In any case wherein
a further hearing is not scheduled as a consequence of a Referee’s decision
reopening, vacating, setting aside or modifying a Referee’s decision, the
Referee shall provide all non-moving parties to such case with (1) a copy
of such motion, together with all supplemental documentation filed in sup-
port of such motion, and (2) a reasonable opportunity to file a written
response to such motion prior to the Referee’s issuance of a new decision
in the case.
‘‘(d) The Referee may deny any such motion based upon the allegations
of new evidence if the Referee determines that the new evidence is unneces-
sarily duplicative or is not likely to affect the result in the case, or that the
exercise of reasonable diligence by the moving party would have resulted
in the presentation of such evidence at the hearing previously scheduled
and the moving party does not otherwise show good cause for such party’s
failure to present such evidence.
‘‘(e) Any party aggrieved by a decision of a Referee with regard to any
such motion may appeal to the Board within twenty-one calendar days of
the mailing of such decision as set forth in Section 31-237g-34 (b) and (c).’’
6
Practice Book § 22-9 provides: ‘‘(a) Such appeals are heard by the court
upon the certified copy of the record filed by the board. The court does
not retry the facts or hear evidence. It considers no evidence other than that
certified to it by the board, and then for the limited purpose of determining
whether the finding should be corrected, or whether there was any evidence
to support in law the conclusions reached. It cannot review the conclusions
of the board when these depend upon the weight of the evidence and the
credibility of witnesses. In addition to rendering judgment on the appeal,
the court may order the board to remand the case to a referee for any
further proceedings deemed necessary by the court. The court may remand
the case to the board for proceedings de novo, or for further proceedings
on the record, or for such limited purposes as the court may prescribe.
The court may retain jurisdiction by ordering a return to the court of the
proceedings conducted in accordance with the order of the court, or may
order final disposition. A party aggrieved by a final disposition made in
compliance with an order of the Superior Court may, by the filing of an
appropriate motion, request the court to review the disposition of the case.
‘‘(b) Corrections by the court of the board’s finding will only be made
upon the refusal to find a material fact which was an admitted or undisputed
fact, upon the finding of a fact in language of doubtful meaning so that its
real significance may not clearly appear, or upon the finding of a material
fact without evidence.’’
7
General Statutes § 31-237g provides: ‘‘The board shall adopt regulations,
in accordance with the provisions of chapter 54, concerning the rules of
procedure for the hearing and disposition of appeals under the provisions
of this chapter. The board shall also undertake such investigations as it
deems necessary and consistent with this chapter.’’