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denied unemployment by hearing officer

by joel
(b' ham alabama)

hi my name is joel from b'ham alabama. my recent appeal for unemployment was denied by the hearing officer even after the employer failed to show up for the hearing.


I left voluntarily due to the job making my asthma worse, keep in mind I had it since I was a child, but I had no problems with it, until I started working at the job in question.

I went to the doctor and he told me to find a new job because it makes my asthma worse. I went to the employer the next day and told him about it and ask was there any other work I can do and he said there was not. He also said that he doesn't have any other job for me to do. He then said if you can't do the work cause of your asthma, you either quit or you will be fired. I quit because i did not want to be fired. I offered a letter saying why i was leaving the job and the employer didn't want to sign the letter. I told the hearing officer all this and also again the employer did not show up for the hearing. This was the hearing officer's findings: THE CLAIMANT WORK AS A LABORER AS A FOUNDATON REPAIRER. THE CLAIMANT HAD ASTHMA SINCE CHIlDHOOD. THE WORK HE WAS DOING CAUSEd HIS ASTHMA TO FLARE UP AND GO TO THE HOSPITAL AT THE END OF THE DAY DUE TO THIS PROBLEM THE CLAIMANT CONCLUDED THAT HE CAN NO LONGER BE ABLE TO PERFORM THE WORK THAT HE WAS HIRED TO DO. HE ASKED THE EMPLOYER IF THERE HAD ANY OTHER TYPE OF WORK FOR HIM. THE EMPLOYER DID NOT HAVE ANY OTHER WORK FOR THE CLAIMANT. THE CLAIMANT LEFT HIS EMPLOYMENT DO TO ILLNESS.( Keep in mine, he never says in the decision letter that was sent, that i told him the employer said since, i don't have any other work you can do, you will have to quit or be fired.)THE CONCLUSIONS BY THE HEARING OFFICER WAS THIS:SECTION 25-4-78(2) THE LAW PROVIDES THAT AN INDIVIDAUL SHALL BE DISQUALIFIED BENEFITS IF HE LEFT VOLUNTARILY WITHOUT GOOD CAUSE CONNECTED WITH SUCH WORK. THE APPELLATE COURT RULED THAT ILL HEATH OR PHYSICAL INFIMARY IS GOOD CAUSE FOR A EMPLOYEE TO CEASE WORKING, BUT THE ILLNESS OR PHYSICAL INFIMARY HAVE TO BE SHOWN TO HAVE RESULTED FROM OR HAS TO BE CAUSE BY THE EMPLOYMENT OR WORK. THE CLAIMENT WAS DIAGNOSED WIYH HIS ILLNESS BEFOR HE BEGAN WORK WITH THE EMPLOYER. THUS THE CLAIMANT VOLUNTARILY LEFT HIS EMPLYMENT WITHOUT GOOD CAUSE CONNECTED WITH THE WORK. THERFOR, HE IS SUBJECT TO THE DISQUALIFYING OF PROVISION OF THIS SECTION OF THE LAW: I Look under the section: 25-4-78(2)and i don't understand his decision under this law. from what i read it seems that he saying, since i had asthma and i was diagnosed early in my life with it, i am disqualified even though the job cause my asthma to flare up. it was not a good cause to leave work. was this decision right? do i have a chance with the board of appeals. if i do have a case how long will it take to get a second a appeal?


I'd appeal it to the board of review.

There might be a few significant facts that you provided that appear to have been ignored and might show the error to be incorrect.

1. You were advised by a doctor to quit. (Did you provide this testimony and documentation from the doctor stating this)?

2. As you said he seems to have completely disregarded your testimony which show you sought alternatives to quitting first and for some reason gave credibility to an employer that wasn't there to even rebut what you said.

Now with this in mind .. It is difficult to get a board of review to reverse. This is why I strongly urge anyone to have an attorney handle the appeal.

If you do try to do it by yourself I suggest you find some Alabama precedents which support your contention that the hearing officer was in error in your case. They need to be relevant and current decisions.

A board of review references the recording or transcript of a hearing when making their decision .. therefore, you need it too in order to make your appeal specific.

But here's the danger .. even if you fight a good fight with your appeal letter .. if you miss the one thing might cause a reversal .. they can't address it because you did not raise it on appeal.



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Jan 09, 2010
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thanks
by: joel mcmillian

what i don't understand , the hearing officer stated the illness or physical infirmity must be shown to have resulted from or have to be caused by the employment, but in in the letter he stated that the job caused my asthma to flare up and i had go to the hospital. is there any law saying if you get diagnosed with something as a child you should not take certain employment. if you know about asthma, you know, you might don't get symptoms for years and all of a sudden something can trigger it.


I know of no law .. that would seem to be contradictory to the ADA and asthma can be a disability. Therefore, I am confused to the reasoning for the decision.

Did the decision include the "reasoning" .. they usually do.

Jan 11, 2010
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by: joel mcmillian

he said n the letter that the appellate court have ruled that illness or physical infirmity is good cause to cease working, but unless the illness or physical infirmity is shown to have resulted from or have been caused by employment, the employee is disqualified from receiving benefits. the claimant was diagnosed with his illness before he began work. thus the claimant left voluntarily without good cause. Decision: the claimant remains disqualified under provision of section 25-4-78(@) of the unemployment compensation law in Alabama.


Okay, that means that it must be attributable to the work .. appeal because it was the work that caused it to flair, you sought alternatives to quitting and testified to such. It was the employer that said you either quit or you would be fired because they had no other work for you and finally, you had a medical doctor advise you that it was the work that caused the illness to flair.

I would appeal. I'm not sure what the results will be, but clearly, no appeal means that decision will stand for certain.

It seems to me that the hearing officer would have needed "credible" testimony from an employer witness saying that you did not seek alternatives prior to quitting. You said the employer did not attend .. therefore, APPEAL.

Jan 12, 2010
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thanks
by: joel mcmillian

am trying to get free legal help in my city, hoping i can get someone to take my case. the hard thing is, i have had no income for months. Amazing a 10 minute hearing with the law judge and it took them four months to reach this decision. i can't even think about how long it will take , even if the board of appeals decide to review my case. wish me luck and i will keep everyone updated with the process.

Jan 12, 2010
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Can my employer offer testimony at a board of review hearing?
by: joel mcmillian

can the employer testify, if i get a review from the board of appeals or will the board give the employer another chance to testify even when they did not attend the first hearing.



Hi Joel,

We are now talking about a board of review. Testimony has already been given.

But of course the employer can also respond to an appeal which you make to the board of review, but it's not through testimony.

It would be more like an affirmation letter stating why they believe the hearing decision is correct and should be allowed to stand.

It's too late to add anything to the record. The board review the record created at the hearing.

Even you cannot add testimony or evidence. Your appeal must be based on the procedural and factfinding errors made by the hearing officer. The reason I always recommend an attorney for this level is because it is very difficult to point out all the possible procedural errors .. unless you are very familiar with the "rules for administrative hearings".

Another possible scenario I have not mentioned is when the boss doesn't show up for hearings. This often happens because they can't attend for some reason and their request for postponement of the hearing was denied.

If the employer wants to offer testimony there is always a possibility the board would allow a reopening. This would normally happen only if you had won the hearing. An employer is not going to reopen a hearing if they won.

So testimony from the employer is a very unlikely possibility at all.

Joel, good luck with finding a free lawyer.

PS waiting four months for a hearing decision is completely unacceptable .. no matter how busy the state is with hearings.

Jan 12, 2010
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can't believe this
by: joel mcmillian

i call the hearing and appeals division in Alabama, to request transcripts of my hearing with the law judge and they told me that ,they don't know if they will get to my request in time ,before my final day of appeal on Jan 25, 2010. shouldn't they be prepared for this. she said she had many request and she don't know if she can make the request in time because she has a lot of request. she made it look like she was the only one working on request for transcripts.


I guess they must be deciding a lot of appeals in favor of employers .. hmmm.

Check the rules of procedure for administrative hearings. Find out if you have additional time after making the appeal for review to submit a brief or present an oral argument at the time of review.

Or if the appeal for review might be denied for "lack of information" for the basis.

The rules of procedure is also where you'll find possible procedural errors made by the hearing officer to use in your argument .. along with all due process issues .. such as getting a transcript of recording to review to base your arguments on.

Jan 13, 2010
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by: joel mcmillian

sorry i don't understand, when you say appeal of review might be denied for "lack of information" for this basis.


Hi Joel,

You need to check the instructions that came with the hearing decision.

There are differences between the states .. especially at this appeal stage.

In a lot of states a short letter just saying you wish to appeal might be sufficient, but your request for review (appeal) can be denied. So clarify for yourself what the requirements are right now to get the review.

Generally, if you just ask for review you will receive an "appeal acknowledgment" stating how long you have to submit a brief or if an oral argument is allowed at the time of review, but like I said .. I do not know off hand the procedures in your state .. so find out if the initial letter you send off needs to contain the specifics for the reason for review or if you will have additional time to do this.


Nov 24, 2010
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judged before hearing officer hears case`
by: james

My name is james and I had a hearing with a hearing officer an my ex. employment manager an the owner. During the conversation with manager thru the three way phone call the manager began lieing on me and I got upset and call the manager a lie. At that time the hearing officer, spoke up and said that in other cases that, he had heard where as the other person who calls the other person a lie. is really the person who is lieing and at that time I realize that I was being pre judged on my case by the hearing officer.I did do a appleal with the county courts, but filed to late and they didn"t denied my case.email me if you no of some help.



James,

I sorry to hear about your ordeal James, but as I suggest continually, remain detached, prepare for the hearing as if you were your own lawyer .. because you are in fact your own lawyer .. and most importantly, get the first hearing right because appeals only get harder to understand after the first one .. and definitely more difficult to win.

I've heard another expression used with regard to claimant behavior at a hearing.

If they're crying they're lying.

Just another reason to detach yourself during the hearing and think logically and follow proper etiquette for any legal proceeding.

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