Stephen Berry v. Department of Labor

VERMONT SUPREME COURT Case No. 22-AP-294
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APRIL TERM, 2023

Stephen Berry* v. Department of Labor } APPEALED FROM:
} Employment Security Board
} CASE NO. 10-21-198-01

In the above-entitled cause, the Clerk will enter:

Claimant appeals the decision of the Employment Security Board sustaining the denial of
his request to backdate claims for unemployment compensation benefits. We affirm.

Claimant worked as a bus driver for Student Transportation of America until he left work
for medical reasons in February 2021. He filed an initial claim for unemployment benefits for
the week ending February 27, 2021. He filed weekly claims through the week ending April 3,
2021, when he learned that his claim was denied. He appealed that decision and stopped filing
weekly claims. In October 2021, an administrative law judge found that claimant was eligible
for benefits for claims filed after February 27, 2021, “provided claimant meets all eligibility
requirements.”

On October 13, 2021, claimant filed a request to backdate his initial claim to September
2020 and add claims for the weeks ending September 19, 2020, to November 7, 2020; December
12, 2020; December 19, 2020; January 9, 2021, to February 20, 2021; and April 10, 2021, to
June 12, 2021.* A claims adjudicator denied his request, concluding that his backdating request
was untimely for those periods. Claimant appealed to an administrative law judge, who affirmed
the claims adjudicator’s decision, and then to the Board, which likewise sustained the decision.

On appeal to this Court, claimant argues that the Department never formally notified him
of the denial of his initial claim or warned him that he had to keep filing weekly claims while his
appeal was pending in order to be eligible for benefits for those weeks. He argues that it was

*
In his backdating request, claimant included the weeks ending March 6 to April 3,
2021, during which he did file weekly claims. It appears from the record that his claims for
those weeks were allowed. On appeal, claimant appears to also seek benefits for weeks ending
June 19, 2021, to October 16, 2021. Claimant did not include these claims in his backdating
request, and they were not addressed by the administrative law judge or the Board. We therefore
do not address his claims for these weeks, as claimant has not preserved the issue for appeal. See
Allen v. Vt. Emp. Sec. Bd., 133 Vt. 166, 169 (1975) (stating issues not raised before Board in
first instance will not be considered by this Court on appeal).
unfair to deny him benefits for a time when he would otherwise be eligible. He asks this Court
to order the Department to pay him benefits for the claimed twenty-seven weeks plus interest of
twenty percent.

Our review of the Board’s decision is deferential. 863 To Go, Inc. v. Dep’t of Lab., 2014
VT 61, ¶ 8, 196 Vt. 551. We “generally defer to its interpretations of the statutes it is charged
with administering, while mindful that they must be construed liberally in favor of claimants to
compensate employees laid off involuntarily through no fault of their own.” Blue v. Dep’t of
Lab., 2011 VT 84, ¶ 6, 190 Vt. 228 (quotation omitted). “Absent a clear showing to the contrary,
any decisions within [the Board’s] expertise are presumed to be correct, valid, and reasonable.”
Bouchard v. Dep’t of Emp. & Training, 174 Vt. 588, 589 (2002) (mem.).

The Vermont unemployment insurance statute provides that “[c]laims for benefits shall
be made in accordance with rules adopted by the Board.” 21 V.S.A. § 1346(a). Under Board
Rule 11, “[t]he effective date established for a new, additional, or reopened claim for benefits
will be the Sunday immediately preceding the date the claim is filed.” Rules of the Vermont
Employment Security Board, Rule 11(A), Code of Vt. Rules 24 005 001, [hereinafter Board
Rules] http://www.lexisnexis.com/hottopics/codeofvtrules; see also id. Rule 2(O) (defining “new
claim” as “an application for the establishment of a benefit year, a determination of eligibility for
benefits, and a determination of a weekly benefit amount”). “An individual’s first week of total
or partial unemployment . . . shall begin on the first day of the week in which the individual files
a new, additional, or re-opened claim for benefits.” Id. Rule 11(B). The rules further provide
that claimants must file continued weekly claims for each week they are partially or totally
unemployed to receive benefits. Id. Rule 11(D). Rule 11(D) states that, “[i]n order to establish
eligibility for weeks of total or partial unemployment . . . the claimant shall, except for good
cause, file a continued claim for benefits within six days of the week ending date being filed.”
The rule permits a continued claim to be backdated for good cause if the request is filed within
thirteen days of the last day of the week being filed. Id. Rule 11(D)(1).

Here, it is undisputed that claimant did not file weekly claims for any of the periods for
which he seeks benefits. After prevailing in his first appeal, he sought to backdate his claim to
include seventeen weeks of partial or total unemployment that preceded his initial February 2021
claim and ten weeks afterward. The Board correctly concluded that claimant could not backdate
his claim to include the weeks preceding his initial February 2021 claim, as nothing in the statute
or the Board’s rules authorizes the backdating of a claim prior to the establishment of a new
claim. See Ramos v. Dep’t of Lab., No. 2019-187, 2019 WL 6524657, at *2 (Vt. Dec. 2, 2019)
(unpub. mem.) [https://perma.cc/77RG-YU6R]. As for the period from April to June 2021,
claimant filed his backdating request in October 2021, more than thirteen days after the last day
of each week in that period. It was therefore plainly untimely under Board Rule 11(D)(1), and
the Board properly denied the claim on that basis.

Claimant asserts that he was never told by the Department that he had to keep filing
weekly claims while his appeal was pending to be eligible for benefits during that period.
However, as discussed above, the Board rules clearly require a claimant to file weekly claims for
each week they are unemployed to receive benefits. Further, the Department’s unemployment
insurance claimant handbook expressly warns claimants that “[i]f you appeal your determination,
make sure you continue to file weekly claim certifications each week you are unemployed until a
decision on the appeal has been made. Failure to file weekly claim certification[s] may result in
a loss of benefits for the weeks not filed for.” See Vt. Dep’t of Labor, Vt. Claimant Handbook at
18, https://labor.vermont.gov/sites/labor/files/doc_library/B-11Claimant%20handbook%202019
.pdf, [https://perma.cc/56WL-R6HG]. Claimant acknowledged that he read this handbook,
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which explicitly notified him of the steps he had to take to preserve his claims. We therefore see
no reason to disturb the Board’s decision. Because we affirm the decision below, claimant’s
motion for this Court to allow him to backdate his claims is denied.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

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