I need a pro bono opinion on my appeal to the decision of the State of Florida re: my being asked to repay benefits already rec'd. I have a hearing Nov. 9th and need to know if my appeal has any legs to stand on.
APPEAL
I would like to preface my argument by citing statute 443.031. The rule of liberal construction as set fourth under Florida Statutes: Title, XXXl , Chapter 443, entitled Unemployment Compensation, and the importance that this rule confers upon the claimant in this particular case.
(See attached)
History of claim
&nbs... Due to the poor economy my employer, Eurographix of Altomonte Springs saw fit to eliminate several positions within it’s firm. I, having held the position of guillotine operator was let go. I subsequently filed my unemployment claim the following week and benefits began I believe the second week of January 2009, until they were suspended on 08/17/09 due to the current issue at hand, my Ability and Availability to perform gainful employment.
It is my contention that I conformed to both requirements as to my ability to work and my availability for work, during the intervening weeks, collecting my benefits until my being awarded SSDI on the 17th of August 2009.
During this period I actively sought employment via newspaper ads, the Internet, and my personal visits to local area firms, along with an occasional “heads up” from friends. The attached list documents the history of my efforts in this regard.
I would like to note that on the very day I received notice from the Social Security Office of my acceptance to the program, I immediately called the unemployment office to enquire as to the legalities of receiving both SSDI and unemployment benefits. I cited Fl. Statue 443.101 regarding SSI payments and was put on hold. When the representative came back on line he was in agreement with my interpretation of the statue as it related to my being able to continue with the benefit. I pressed the issue in that I wanted to know if there was a conflict with the “ Able and Available” clause and the apparent disability that on it’s very surface would contradict the former. It was explained to me that there could very well be a type of job that I could perform that would not necessarily deem me unavailable or unable to do. The example given by your representative was as follows;
“ Say the DOT wanted someone to sit at an intersection with a hand held counter and I was asked to count the number of vehicles going over a certain bridge," could I do that?”
I said, “sure I could” Your representative said that would satisfy both the availability and ability question should it arise.
I would respectfully contend that just because there was not a particular job fitting this exact scenario, I should not be characterized as being unable or unavailable to perform this work if offered. One can envision several other jobs that would fall into this category as well.
I then received my usual notification from your department by mail to file my claim and I did. I checked my online account the following Wednesday to see if when it was deposited and what I found was that a single weeks worth of benefits were deposited, not the two weeks that were due. I then assumed that all future payments were stopped and that I was no longer going to receive them. For me the benefit had ended.
Well two weeks later I received my notice to file claim again so I called your department for further clarification and was told my claim was still valid. I repeated the “able and available” issue to the woman I was talking with and she too put me on hold and said she would check. She came back on the line to say I was still eligible for the benefit. WE hung-up and within 5 minutes she called me back and said that upon further review she said an adjudicator was currently looking at my particular case and I should hear something soon. I mentioned I received notice to file my claim and told me to continue to do so, so as not to interrupt the ongoing claim. She said if I had a positive outcome from the adjudicators review, I would be getting a retroactive deposit and would not have to re-open my claim.
Not having heard anything as of August31, I called your offices and inquired of the status only to be told I was no longer eligible for benefits and a letter would be mailed that very day detailing the department’s decision. That mailing arrived Wednesday and I filed my appeal later that day online.
My current position is that I still qualify for the benefit under title {443.101 pg. 5} I was then and currently still qualified to receive this benefit up and until
&nbs... (a.) A suitable form of employment similar to what was mentioned previously is found.
&nbs... (b.) I refuse a job fitting the aforementioned criterion.
I would note that The Social Security Program itself has what they refer to as the “Ticket to Work” program wherein if I wished to work or had found what was determined “suitable” employment, the agency would provide services to facilitate my efforts in this regard. It seems that the SS administration had determined that I would be able and available for work if I so choose this option.
In summary I would ask that you take into your consideration the Fl. Legislatures determination that the “ Rule of liberal construction” is not to be taken lightly and by legislative edict must be used in determining the intent of the verbiage used in section 443.101. Specifically as it relates to paragraph (c.)
&nbs... If this board sees fit to subjugate any funds at all it would be for the period in which the two benefits overlapped, [07-01-09 thru 08-17-09] totaling $2100.00 &nbs... it is my contention that the benefit is still due and payable as I have yet to meet any of the disqualifying codicils put forth in the statute cited above.
Fl. Statute: Disqualification of benefits 443.101 in support of my position Sec8 par. ( C )
(c) For any week in which he or she has received benefits from a retirement, pension, or annuity program under the United States Social Security Act, for which program he or she has paid any contribution, benefits may not be reduced because of the contribution. For the purpose of this subsection, benefits from the United States Social Security Act, a disability benefit program, or any other similar periodic payment based on the previous work of the individual are considered retirement income, except as provided in paragraph (c).
Also, there seemingly is a conflict with USC~42~12101 as it relates to Title II of ADA. Florida's contention seems to be non-compliant as to my very situation.
