IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STEVE N BOSSERT , ) ) Appellant, ) ) ) v. ) C.A. N o. N22A

- 03

- 005 JRJ

) STATE OF DELAWARE ) DIVISION OF UNEMPLOYMENT ) INSURANCE, & ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD , ) ) ) Appellees

. )

Date Submitted: October 7 , 2022 Date Decided: November 22 , 2022

MEMORANDUM OPINION Upon Claimant’s Appeal from the D ecision of t he Unemployment Insurance Appeal Board: AFFIRMED

.
Steve n Bossert, pro se , Appellant

. Victoria W. Counihan, Deputy Attorney General, Delaware Department of Justice , Wilmington, Delaware. Attorney for the Delawar e Division of Unemployment Insurance

. Victoria E. Groff , Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Atto rney for the Delaware Unemployment Insurance Appeal Board

. JURDEN, P.J.2 I. INTRODUCTION
This is an appeal from a decision of the Unemployment Insurance Appeal Board (“Board”) denying Appellant Steven Bossert’s (“Bossert”) petition for payment of retroactive unemployment benefits. After considering the parties’ briefs,
the relevant evidence in the reco rd , and the determinations of the Board, the Court
concludes that the Board’s decision must be AFFIRMED

. II. BACKGROUND
Bossert is employed as a school bus driver with Sutton Bus & Truck Co

. 1 As a seasonal employee, Bossert file s for unemployment benefits every summer , and
has done so for twenty years. 2 In 2021, Bossert discovered that he had not received
any unemployment benefits for the S ummer 2020 season , and believed he was
entitled to them. 3 Bossert contacted the Delaware Division of Unemployment Insurance (“Division”) on January 10, 2021 and requested retroactive benefits for the period from June 27, 2020 to August 29, 2020 (“the Period”). 4 He continued to
contact the Division without resolution until his case was marked as “closed” in November 1, 2021. 5 Though Bossert did not file a formal “Complaint” with the

1 Not ice of Determ ination , R 92. 2 Referee Hr’g Tr. , R 45 at 27: 20

- 21 , R 46 at 28: 14 , R 31 at 31: 23

- 24. 3 See generally Agency Ex. 3, R 81

- 86.
4 Id. 5 Id.3

Division, his request for retroactive benefits was submitted for consideration by a Claims Deputy.
The Claim s Deputy for the Division issued a Notice of Determination on December 2, 2021 , finding Bossert ineligible for receipt of retroactive benefits for
the Period

. 6 This determination was based on the finding that Bossert had no t filed
any weekly pay authorizations after June 20, 2020

. 7 On December 9, 2021, Bossert appealed the Claim s Deputy’s decision to t he
Division

. 8 The Division held a telephonic hearing on January 18, 2022 , 9 where a n Appeals Referee (“Referee”) considered the appeal de novo

. 10 During the hearing, the Appeals Representative (“Representative”) , appearing on behalf of the Division,
stated that because Bossert did not have an open claim and did not file weekly pay authorizations, he was ineligible for retroactive benefits for the Period. 11 The Representative testified that Bossert previously filed a claim for unemployment benefits on June 16, 2019. 12 A claim year lasts for a year and six days, thus Bossert’s claim expired on June 22, 2 020. 13 According to the Representative, Bossert would have had to open a new claim by June 22, 2020 before he could begin filing pay

6 Notice of Determination, R91. 7 Id. The Claims Deputy applied 19 Del. Admin. C. § 1202

- 6.1 as the basis for its determination. 8 Not ice of Appeal Req

. , R 9 1 , R 9 3. 9 Notice of Ref

eree ’s Hr ’ g, R 89. 10 See Referee Hr’g Tr. , R 22

- R 5 6

. 11 Referee Hr’g Tr., R34 at 16:19

- 22, R41 at 23:19

- 24. 12 Referee Hr’g Tr., R28 at 10:1

- 2. 13 Id. at 10:4

- 5.4

authorizations for the weeks that followed. 14 The Representative testified that in advance of that expiration date, the D ivision sent Bossert a letter advising him that he was required to open a new claim. 15 Bossert did not dispute the Division’s
assertion that he failed to open a new claim by June 22, 2020 ; however, he testified
that he never received notice from the Division that his prior claim was expiring

. 16 The Representative further testified that Bossert stopped filing weekly pay authorizations after June 20, 2020, and he did not file any during the Period. 17 In addition to her testimony, the Representative also submitted several exhibits, including an agency record showing a portion of Bossert’s claims and pay
authorizations submitted to the Division. 18 According to the agency record, no pay autho rizations were filed by Bossert between June 20, 2020 and December 26,
2020. 19
Bossert testified that he filed the appropriate weekly pay authorizations as required by law for the Period 20 and argued that he has been filing for unemployment
benefits for over twenty years

– “[e]very summer, every Thanksgiving, every

14 Id. at 10:6

- 7. 15 Id. 16 Referee Hr’g Tr., R38 at 2 0:12

- 13. 17 Referee Hr’g Tr., R28 at 10:17

- 18. 18 Agency Ex. 4, R87

- R 88. 19 Id. The Representative also testified that the Division had their IT department conduct a search of their online claims system to ensure there were no hidden pay orders for Bossert. Referee Hr’g Tr., R47 at 29:1

- 5. The search r eturned no results for Bossert. Id. 20 See generally Referee Hr’g Tr., R 22

- R5 6

.5

Christmas, every Easter . . . ,” 21

– u p to and including the P eriod for which he seeks retroactive payments. 22 Bossert did not provide any documentation to the Referee in support of his claim that he filed the required pay authorizations. Following the January 20, 2022 hearing, t he Referee issued her decision uph olding the Claim s Deputy’s determination finding Bossert ineligibl e for
retroactive benefit s. 23 The Referee determined that Bossert had not filed any weekly pay authorizations during the Period and did not have an open claim until he filed

one on November 22, 2020. 24 The Referee cited 19 Del. Admin. C. § 1202

- 6.1 as the legal basis for her decision , stating, “Regulation 6.1 . . . stipulates that all unemployment claims must be dated as effective during the week in which the
individual makes contact with the office.” 25 On January 31 , 2022, Bossert appealed the Ref eree’s decision to the Board

. 26
The Board held a review hearing on February 9, 2022

. 27 As a matter of discretion,
it conducted the hearing outside the presence of the parties , taking no new testimony
from the Division or Bossert

. 28 On March 11, 2022, t he Board affirmed the

21 Referee Hr’g Tr. , R 37

- R 38 at 19: 23

- 24

– 20: 1. His testimony that he did so was based on his recollection, frequency of filing, and past history with the system. 22 See generally Referee Hr’g Tr., R 22

- R5 6

. 23 Referee’s Decision, R67. 24 Referee’s Decision, R68. 25 Id. See also 19 Del. Admin. C. § 1202

- 6.1.1. 26 Appeal Req. to Board , R 9, R 11. 27 Not ice of B oard ’s Decision, R 4 para. 1. 28 Notice of Board’s Decision, R 5 para. 4 (quoting 19 Del. C. § 3320(a)).6

Referee’s decision, relying solely on “evidence previously submitted to the appeal tribunal” and adopting the findings and conclusion of the Appeals Referee. 29 Bossert timely appealed the Board’s decision to this Court. 30

III. STANDARD OF REVIEW The Superior Court plays a limited role when revie w ing a decision on appeal
from the Board. Factual findings, “if supported by evidence . . . shall be conclusive, and the Court shall be confined to questions of law.” 31 “T he position of the [Court] on appeal is to determine only whether or not there was substantial evidence to support the findings of the Board.” 32 Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a con clusion.” 33
Conclusions of law are reviewed de novo

. 34 T he Court will review the Board’s discretionary rulings for abuse of discretion , 35 only disturbing its decisions where
the Board “acts arbitrarily or capriciously, or exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.” 36

29 Notice of Board’s Decision, R 4

- R 8. 30 Bossert’s Notice of Appeal, R 3. 31 19 Del. C. § 3323(a). 32 Gen. Motors Corp. v. Freeman , 164 A.2d 686, 689 (Del. 1960). 33 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc. , 636 A.2d 892, 899 (Del. 1994) ( citing Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981) ). 34 LeVan v. Indep

. Mall, Inc. , 940 A.2d 929, 932 (Del. 2007). 35 Funk v. Unemployment Ins. Appeal Bd. , 591 A.2d 222, 225 (Del. 1991). 36 Oceanport Indus. , 636 A.2d at 899 ( citing Olney , 425 A.2d at 614 )

.7 IV. DISCUSSION Bossert asserts the following grounds as the bas e s for his appeal : ( 1) the
Division knew that the online benefits portal was error
- prone ; (2) the Board held its hearing without him present ; (3) he did not receive notice of the end of his claim
year ; and (4) he should receive retroactive benefits because he submit ted the required weekly pay authorizations during the P eriod. 37
A. The Court Will Not Consider Facts Raised for the First Time on Appeal
. Bossert raises new facts for the first time on appeal

. Specifically, i n his Notice of Appeal , h e argues that “there [was] a problem with the online [web benefits] system

. ” 38 He alleges that several D ivision employees were aware of the problem, and any issues with his pay authorizations were due to those errors and “no fault of [his own ].” 39 Upon appeal from a denial of unemployment benefits, the Superior

37 Bossert’s Not ice of Appeal, R 3. 38 Id. ¶ 2; Bossert’s Opening Br. ¶ 4. 39 Bossert’s Notice of Appeal, R 3 , ¶ 2. Bossert claims that several Department of Labor employees have admitted that the online web benefits system is unreliable. In his Notice of Appeal, Bossert claims that “Robin [sic] Christie and JJ Lang . . . said only [to] use [the] phone for pay authorizations [be]cause [they have] had too many problems online.” Id. Bossert makes a similar claim in his Opening Brief alleging that Robyn Christie advised him to use the phone to fil e pay authorizations because they are recorded, and “they [have] had many problems with [the] online [system]. ” Bossert’s Opening Br. ¶¶ 2

- 3. He also states that the Representative, JJ Lang, also advised him as much. Id. ¶ 4. In his Reply Brief, Bosser t cites pages 32 and 33 of the hearing transcript, arguing that the Representative advised him to use the phone and conceded that there were problems with the online system. Bossert’s Reply Br. ¶ 4. Contrary to Bossert’s statements, the Representative a c t ually t estified as follows: “ I would suggest you call in your pay orders. Because at least then it tells you that it got it. Something’s not right. And I’m not sure, you know, if it’s a user error . . . [but w] e haven’t had this issue with people online . . .” Referee Hr’g Tr., R 50 at 32:7

- 14.8

Court is limited to consideration of the record which was before the administrative
agency
. 40 Thus a claimant, appealing the decision of the Board, may not supplement
the r ecord with facts not previously raised. 41 F acts not appearing in the record below
will not be considered. 42 Consequently , Bossert’s claim alleging technical
difficulties with the web benefits portal will not be considered by the Court.
B. The Board Did Not Abuse i ts Discretion in Conducting a Review Hearing W ithout the Presence of the Parties
. In his opening brief, Bossert questions whether the Board erred when it
conducted t he February 9, 2022 hearing without him present. 43 Delaware law affords the Board broad discretion in hearing appeals and provides that the Board may render its decision “on the basis of the evidence previously submitted . . . or it

may permit any of the parties . . . to initiate further appeal before it.” 44 The Board may, in its discretion, render a decision “without further hearing [,] ” 45 and the Court has previously held that the Board is not required to notify or accept the testimony
of a c laimant on review. 46 The Board found that Bossert’s request for appeal raised “no new factual or legal issue[s] for the Board to address , ” 47 so it considered his

40 Hubbard v. Unemployment Ins. Appeal Bd. , 352 A.2d 761, 763 (Del. 1976)

. 41 Torres v. MOT Charter Sch. , 2022 WL 1584508 , at *2 (Del. Super. May 19, 2022)

. 42 Id. 43 Bossert’s Opening Br . ¶ 5. 44 19 Del. C. § 3320(a) (emphasis added). 45 19 Del. Admin. C. § 1201

- 6.3. 46 August v. People ’ s Place II, Inc. , 2022 WL 537405, at *3 (Del. Super. Feb. 23, 2022); Molinaro v. Div. of Unemployment Ins. Appeal Bd. , 2005 WL 1952989, at *1 (Del. Super. June 24, 2005). 47 No tice of B oard’s Decision, R 5 para. 4; see Bossert’s Appeal to Board, R 11.9

appeal on the record. Th us , the Court finds no error of law or abuse of discretion in
the Board’s decision to conduct a “review hearing[]” 48 without the parties present

. C. There Are Sufficient Facts in the Record to Support a Finding That There Were No Filing Errors by the Division
.
Bossert does not dispute the fact that he did not have a claim open during the
Period . He argues that his failure to file was the Division’s fault because it failed to notify him that his claim was about to expire. 49 Under Delaware law, notice that is “correctly addressed, stamped and mailed is presumed to have bee n received by the party to whom it was addressed.” 50 Absent evidence suggesting error by the Department of Labor in mailing or addressing such notice, the presumption that notice was properly mailed and addressed is supported. 51 This is true even in the absence of “any documentary evidence of mailing, to establis h that notice was sent to the party.” 52 The presumption may be rebutted by evidence that the mail in question was not received, but “[m]ere denial of receipt is insufficient to rebut the presumption.” 53

48 Board’s Answ ering Letter para. 3. 49 Bossert’s Notice of Appeal, R3, ¶ 1. 50 PAL of Wilmington v. Graham , 2008 WL 2582986, at *4 (Del. Super. June 18, 2008). 51 Id. 52 Id. (citing Reagan Nat ’ l Advert

. , Inc. v. Unemployment Ins

. Appeal Bd

. , 1990 WL 105632, at *3 (Del. Super. July 19, 1990)). 53 Straley v. Advance Staffing, Inc. , 984 A.2d 124, 2009 WL 3451913, at *3 (Del. 2009) (TABLE).10

At the hearing before the Referee , the Representat ive testified that the Division sent Bossert a letter notifying him that his prior claim was expiring and he
needed to open a new claim

. 54 There is no evidence in the record to suggest that the Division improperly addressed, stamped, or mailed the letter. The Representative
testified that Bossert should have been aware of the claims process because it is outlined in the Claimant Handbook, 55 and the Division’s processes have been the same for years. 56 The Represent ative further testified that Bossert’s past history of filing for unemployment benefits should have been sufficient to inform him of the correct process for filing a claim and what was required of him. 57 Bossert offered
no evidence to refute this testimon y other than stating, “I know you’re going to say it is my responsibility to figure that out, but I’ve been doing it 20 years and never had a problem.” 58 T he evidence supports the presumption that the Division’s letter was appropriately addressed, mailed a nd received, giving Bossert adequate notice that he needed to open a new claim. Based on the testimony of the parties and the

54 Division’s Answering Letter ¶ 2; see also Referee Hr’g Tr. , R 40 at 22: 9

- 11. The Representative did not provide a copy of the letter at the hearing , and it does not appear in the record. The Referee did not request that the Representative take further st eps to locate the letter. 55 Div. of Unemp. Ins, Claimant Handbook: Your Guide to Unemployment Insurance Benefits , Del. Dep’t of Lab., https://laborfiles.delaware.gov/main/dui/handbook/UI%20Claimant%20Handbook.pdf (last revised Apr. 2020). 56 Referee Hr’g Tr., R41 at 41:15

- 24, R42 at 24:1

- 14. 57 Referee Hr’g Tr., R29 at 11:7

- 13. 58 Referee Hr’g Tr., R38 at 20:20

- 23.11

relevant evidence in the r ecord, the Court finds no legal error nor abuse of discretion on the part of the Board

. D. The Board’s Decision to Deny Bossert Retroactive Benefits Is Based on Substantial Evidence and Free from Legal Error
. Bossert argues that he is eligible for retroactive benefits because he did file weekly pay authorizations for the Period. 59 Under Delawa re law, the process for receiving unemployment benefits is governed by 19 Del. Admin. C. § 1202

- 6. 0

. 60
Section 1202

- 6.1 provides that an individual claiming unemployment benefits must
first “[f]ile a claim for benefits, either in

- person at a Delaware Divi sion of Unemployment Insurance Local Office or via the Internet.” 61 Subsequently , § 1202

- 6.2.2 provides that “in order to establish eligibility for benefits , the claimant shall

. . . [f]ile a continued claim for benefits each week.” 62 Thus, the claims process proceeds in two parts : an individual seeking unemployment benefits must first file a claim and then must file week pay authorizations. 63 Here, it is not disputed that Bossert did not have an open a claim during the
Period. At the hearing before the Referee, the Representative testified that Bossert ’s

59 Bossert’s Notice of Appeal ¶ 2. 60 19 Del. C. § 3317(a). 61 19 Del. Admin. C. § 1202

- 6.1.1. Under this regulation, a claim filed in this manner is effective as of the Sunday preceding the filing date. Id. 62 19 Del. Admin. C. § 1202

- 6.2.2. Though the regulation uses the term “claim,” this term may be used interchangeably with the term “pay authorization.” 63 See generally Referee Hr’g Tr., R51.12

prior claim year began on June 16 , 2019. 64 That claim year expired on June 22 , 2020, 65 and Bossert did not file a nother claim with the Division until November 22 , 2020. 66 Therefore, from June 22 , 2020 until November 22 , 2020, including the Period at issue in this appeal, Bossert did not have an open claim with the Division. With regard to the required weekly pay authorizations, as Bossert concedes, t here is
no evidence in the record other than Bossert ’s testimony supporting his contention that he filed weekly authorizations , and Bossert provide d no documentation to the
Referee to support his argument

. 67
The Board ’s decision that Bossert was ine ligib le for retroactive benefits for
the Period 68 is based on Bossert’s failure to file weekly pay authorizations for the
Period. 69 The Board upheld the Referee’s decision, relying on 19 Del. Admin. C. §
1202

- 6.1.1

. 70 But, t he Board cited the wrong section of the operative regulation.
The Board should have cited § 1202

- 6. 2

. 2

. 71 That being said , g iven t he Board’s

64 Referee Hr’g Tr., R28 at 10:1

- 2. 65 Id. at 10:4

- 5. 66 Referee Hr’g Tr., R34 at 16:9

- 10. 67 In his Notice of Appeal to the Board, Bossert concedes that “[t]he only proof [the Board has] that I filed my weekly claims is my word.” Bossert’s Notice of Bd. Appeal , R11. 68 Notice of Board’s Decision, R4

- R5

. 69 Id. 70 Id. 19 Del. Admin. C. § 1202

- 6.1 states: “ Except as otherwise provided in this regulation, any individual claiming benefits shall: . . . [f] ile a claim for benefits, either in

- person at a Delaware Division of Unemployment Insurance Local Office or via th e Internet (such claim shall be effective as of the Sunday immediately preceding the date of filing) . . . ” 71 19 Del. Admin. C. § 1202

- 6.2 states: “ 6.2 Except as otherwise provided in this regulation, in order to establish eligibility for benefits, the cla imant shall: . . . [f] ile a continued claim for benefits each week

. . . ”13

factual findings , 19 Del. Admin. C. § 1202

- 6. 2

. 2 renders Bossert ineligible for
retroactive unemployment benefits for the Period

. 72 Section 1202

- 6.2.2 expressly requires the filing of weekly claims, or pay authorizations, in order to establish eligibility for benefits in a given week. 73 The pay authorizations are “the only thing that processes a check” 74 for benefits, and without one, the Div ision cannot make any assumptions on a claimant’s behalf. 75
The Court finds there is substantial evidence to support the Board’s finding
th at Bossert is ineligible for retroactive benefits from June 27 , 2020 to August 29 , 2020. The Board’s erroneous citat ion does not amount to legal error requiring
reversal because t here is substantial evidence in the record demonstrating that
Bossert failed to file weekly pay authorizations during the Period as required by 19
Del. Admin. C. § 1202

- 6. 2

. 2

.

72 See Notice of Board’s Decision, R4

- R5. 73 19 Del. Admin. C. § 1202

- 6.2.2. 74 Referee Hr’g Tr., R43 at 25:18

- 19. 75 Id. at 25:1

- 7.14 V. CONCLUSION After careful review, t he Court finds that there is substantial evidence to support the Board’s decision , the Board’s decision is free from legal error, and the
Board did not abuse its discretion. Consequently, t he Board ’s decision 76 is
AFFIRMED

. IT IS SO ORDERED

.

/s/ Jan R . Jurden Jan R. Jurden, President Judge

76 Notice of Board’s Decision, R4

- R5.