An Employer's Guide To The Appeals Process

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An Employer’sGuide to theAppealsProcessCONNECTICUT DEPARTMENT OF LABOREmployment Security Appeals Division

I. TABLE OF CONTENTSSECTIONSUBJECTPAGEI.TABLE OF AM OF THE APPEALS PROCESSvV.GENERAL INFORMATION1VI.STEPS IN AN APPEAL: THE WHO, WHAT,WHEN, WHY AND HOW4VII.ONCE AN APPEAL IS FILED7VIII.PREPARING FOR THE HEARING8IX.WHAT GOES ON AT THE HEARING10X.THE REFEREE’S DECISION13XI.DETERMINING THE EFFECT OF A CLAIMON AN EMPLOYER’S U.I. ACCOUNT14XII.APPEAL TO THE BOARD OF REVIEW17XIII.APPEALS DIVISION OFFICES ANDCTWORKS CAREER CENTERS19ii

II. INTRODUCTIONThis pamphlet is mailed to an employer whenever an appeal has beenfiled from a decision of the Unemployment Compensation Departmentwhich may result in potential charges to an employer’s account. If youhave not filed an appeal and you receive this pamphlet in the mail,this means that your former employee has appealed from a decisionof the Unemployment Compensation Department denying him or herbenefits. Your tax liability may be affected by this appeal. With thispamphlet, you should also have received a Notice of Hearing Beforea Referee with the date, time and place of the hearing. Wheneveryou receive a determination with which you disagree, you should appealas soon as possible. Most decisions give you twenty-one (21) days toappeal. Information about filing and pursuing an appeal is found on pageiii and elsewhere in this booklet.Information in this pamphlet will help you understand the unemploymentcompensation law, determine the effect on your unemployment tax liability,and prepare and present your appeal in the most effective manner. Pleaseread this material carefully. If you have any questions, you may contactthe Merit Rating Unit, the Call Center, or the Appeals Division.This pamphlet was written so that all employers would be able tounderstand the appeals process without the help of a lawyer. In a fewplaces we have used technical terms which may be used during thehearing. One such term is “the Administrator.” The Administrator isthe State Labor Commissioner, who administers the UnemploymentCompensation Act. The terms “Administrator” and “UnemploymentCompensation Department” mean the same thing in this pamphlet. TheAppeals Division is separate and independent from the UnemploymentDepartment and is not bound by any decision of the Administrator.Appeal procedures are designed to carry out the unemploymentcompensation statutes and regulations. This pamphlet summarizes thelaw but does not have the force and effect of law. The statutes and theregulations of both the Unemployment Compensation Department andthe Appeals Division are available for inspection at all CTWorks CareerCenters and Appeals Division offices. They are also accessible on theInternet. At these offices you may also consult the Appeals Division’sPrecedent Manual and electronic index (ADLIB), which contain majorcourt and Board decisions interpreting the Unemployment CompensationAct. Addresses, telephone numbers and fax numbers of these offices,the local telephone numbers for the CTWorks Career Centers, and theAppeals Division’s Internet address are listed on pages 19.ii

III. HIGHLIGHTS FILING YOUR APPEAL. You have only twenty-one (21) calendardays from the date of the Administrator’s decision to file an appealwith the Appeals Division. Do not delay. Likewise, you have onlytwenty-one (21) calendar days from the date of the AppealsReferee’s decision to file an appeal to the Board of Review. Do notdelay filing your appeal at either step. See pages 6 and 17 forfurther information. HOW TO FILE. You may obtain a form from the UnemploymentCompensation Department, write a letter to the Appeals Divisioncontaining the basis for your appeal, or use the form on theInternet. See pages 6 and 17 for further information. FILE IN PERSON, BY FAX, BY INTERNET OR BY U.S. MAIL.You may file in person at any CTWorks Career Center or AppealsDivision office, or by fax or Internet. If you file by mail, use the U.S.mail, or a private delivery service approved by the IRS: AirborneExpress, DHL Worldwide Express, Federal Express, or UnitedParcel Service. Use a stamp, not a private postal meter, so thedate of mailing can be determined by the official U.S. PostalService postmark. See pages 6 and 17 for further information. PREPARING YOUR CASE. Determine what law applies to yourcase and what documentation and witnesses you will need topresent a strong case. Proper documentation and credible,first-hand witnesses are vital to your success. See page 8 forfurther information. DOCUMENTATION. Official business records such as timecards, financial records, written warnings, records of progressivediscipline procedures, employee handbooks, contract of hire, theemployee’s application for employment, medical records, policereports, and other agency reports (CHRO), Workers’ Compensation,rehabilitation reports, etc.) are examples of relevantdocumentation. Bring enough copies for the Referee and theclaimant.See pages 10-11 for further information. WITNESSES. Witnesses with first-hand, personal knowledge ofthe circumstances leading to the separation are vital to your case.Have those witnesses attend the Referee’s hearing in person.iii

Written statements by witnesses with first-hand knowledge will begiven little, if any, weight if the author is not available for crossexamination. See pages 10 and 11 for further information. ATTENDANCE AT SCHEDULED HEARING. If you file an appealand do not show up at the hearing, you will probably lose the case.You may be able to get another hearing only if you can showgood cause for not appearing, such as a sudden, documentedillness, a personal emergency, or a major emergency at work(fire, etc.). Overslept, press of business, unexpected appointment,forgot, your secretary did not remind you, lost the hearing notice,and similar excuses are not good reasons. The Referee’s hearingwill likely be your only opportunity to present witnesses anddocumentation in support of your case. The Board of Reviewrarely conducts hearings. See page 7 for further information. REQUESTING A POSTPONEMENT. Ask for a postponement assoon as possible if you have an unavoidable conflict. Last minuterequests are generally denied unless you have a real emergency,as described above. See page 7 for further information. REPRESENTATION. Although representation is not usuallynecessary, you may bring legal or other professionalrepresentation to the hearing if you wish. You may request a listof independent hearing representatives by completing theweb form at ver, witnesses with first-hand knowledge are still vital to thesuccess of your appeal. Please read the above section aboutWITNESSES again.See pages 1 through 8 for furtherinformation. FREE VIDEO. A video describing the hearing process is availablefor viewing at the Appeals Division Website: www.ctboard.org.See page 3 for additional information.iv

IV. DIAGRAM OF APPEALS PROCESSLack of workClaimant files forbenefits by phoneat Call CenterNo separation oreligibility issueSeparating or base periodemployer notified(Separation issue, i.e.quit or fire) PaymentbeginsEmployer notified ofchargeability only Job Centerfact findinghearingMerit RatingUnit fordecisionEmployer appealsto Referee(21 days) Losing party(claimant or employer)appeals to Referee(21 days)RefereehearingLosing partyappeals to Board(21 days)Losing partyappeals to Board(21 days)Motion toreopen Losing party files motionto Board to reopen(30 days)Losing partyappeals to Court(30 days)Losing partyappeals to Court(30 days) SuperiorCourtreview of case Board ofReviewreviewsLosing party files motionto Referee to reopen(21 days)V Motion toreopen

V. GENERAL INFORMATIONQ. Do I need a lawyer?A. Usually not. By carefully following the instructions in this pamphlet,an unrepresented employer should be able to gather the necessaryevidence. The Referee will assist you in presenting your case.However, you have the right to be represented by an attorney or otherrepresentative of your choice. You may request a list of independenthearing representatives by completing the web form at www.ctdol.state.ct.us/appeals/HearingReps.htm. If you have a representative, you areresponsible for paying your representative’s fee. If you do not have arepresentative at the Referee’s hearing and later decide that you shouldhave one, this will not provide good cause for another Referee’s hearing.If you are represented by an agent representing you for a fee, that agentmust register with the Board of Review and comply with the code ofconduct promulgated by the Board. The agent may be subject to a penaltyfor violations of the code.If you have other legal disputes with your employee, such as arbitration,workers’ compensation, or discrimination cases, and you are representedin these disputes, you should inform your attorney or representative aboutthe unemployment appeal. Although an unemployment compensationdecision cannot be used against you in any other case, what happensin your unemployment appeal may affect other disputes with youremployee.Q. Can an employee collect benefits while working part-time?A. Yes. The employee may be eligible for partial benefits. Two-thirdsof the employee’s earnings will be deducted from his or her benefits forthe weeks during which the employee works part-time. An employee cancontinue collecting partial benefits until the weekly earnings from part-timeemployment exceed 150% of the weekly benefit rate.Q. How can the claimant collect benefits if he or she was such anunsatisfactory worker?A. An employee’s eligibility and your chargeability are determined solelyby the Unemployment Compensation Act. You may have been entirelyjustified in discharging an employee, but the claimant will not be disqualifiedfrom collecting benefits unless you prove disqualifying conduct under theAct. Once benefits have been awarded, they will continue unless and untilthe award is reversed by a higher authority.1

Q. What if my former employee agrees to give up the right tobenefits?A. The law prohibits you from asking your employees to give up theirbenefits. If an employee made such an agreement, it is void and theemployee is not bound by it. You may not interfere with an employee'sclaim for benefits or appeal.The law protects any employee who files a claim for benefits or whotestifies as a witness from retaliation by an employer. An employee whois disciplined or discriminated against because of participation in anunemployment compensation proceeding can file a complaint with theLabor Commissioner. Remedies include reinstatement, back pay, andattorney's fees.Q. Do I have to allow my former employee access to his or herpersonnel file?A. Yes. General Statutes §31-128b requires employers to permit anemployee to inspect and, if requested, copy the employee’s personnel fileif such a file exists and if such request is made during the employment orwithin one year of the separation from employment. An employer mustprovide an employee with any documented notice of the employee’stermination immediately, and must respond to a file request within fivedays for current employees and within ten days for former employees.Employers must also include any employee response when disclosingwarnings, termination notices or performance evaluations to a third party,which includes the Appeals Referee and the Board of Review.Q. Where can I get more information about the appeals process?A. From the Appeals Division, any CTWorks Career Center or the MeritRating Unit, in person, by mail, or by phone at the Call Center between8:30 A.M. and 4:30 P.M., Monday through Friday. Every effort will be madeto answer your questions and to take appropriate action on your requestor appeal. If you have questions about your tax liability, contact the MeritRating Unit at (860) 263-6705. However, such inquiries will not stay theappeal period or delay a hearing unless the Referee specifically grants apostponement request.You may also wish to visit the Appeals Division's Internet site atwww.ctboard.org. In addition to general information, this site containsthe Online Hearing Docket; ADLIB, an electronic index of Board of Reviewdecisions; a form for filing an appeal; the video describing the hearingprocess; and the unemployment compensation statutes and regulations.2

The Appeals Division has a twenty-minute video explaining the appealsprocess and showing you what goes on at the Referee’s hearing.The video is available for viewing at the Appeals Division website:www.ctboard.org. If you are unable to view the video from the website,you may request that a copy be mailed to you. For a copy of the video, callthe Appeals Division office nearest you or fill out the form on our Internetsite. You may also view this video, by prior arrangement, at any AppealsDivision office.FOR A FREE VIDEO SHOWINGWHAT AN APPEALS HEARINGIS LIKE, VISIT OUR WEBSITEAT WWW.CTBOARD.ORG.3

VI. STEPS IN AN APPEAL:THE WHO, WHAT, WHEN, WHY AND HOWQ. What happens once an appeal is filed?A. It is forwarded to the appropriate office of the Appeals Division for thescheduling of a hearing before an Appeals Referee.Q. What are the steps in an unemployment compensation appeal?A. The initial decision to award benefits and to assess a charge againstan employer’s account is made by the Administrator. The losing party canappeal the Administrator’s decision to an Appeals Referee. The Referee’sdecision can be appealed to the Board of Review, and the Board’s decisioncan be appealed to the Superior Court. See the diagram of the appealsprocess on page v of this pamphlet.Q. Who can file an appeal?A. You, your former employee (the claimant), or any other base periodemployer of your former employee that is affected by a decision of theAdministrator.Q. What can be appealed?A. Any determination of the Administrator can be appealed. Wheneveryou receive a decision with which you disagree, you should file anappeal at once. The only exceptions are for tax assessments due todelinquent reporting of wages and administrative penalties for intentionalmisrepresentation. Pursuant to Section 31-270 of the General Statutes,these decisions must be appealed directly to the Superior Court. Othertax issues should be appealed to the Referee like any other decision ofthe Administrator.Q. What if the claimant is not claiming benefits against myaccount?A. Neither you nor the claimant has a choice about which employer ischarged for a claim. This is determined by law. A separation from youremployment within the applicable period may affect the claimant’s eligibilityfor benefits or your unemployment tax rate.4

Q. What if the claimant has returned to work?A. The appeal will still determine the claimant’s entitlement to benefits (andyour chargeability) during the time when the claimant was unemployed andfiled claims for benefits. Moreover, if the claimant is not fully unemployed,he or she may be eligible for partial benefits. (See the second question onpage 1.) Your potential liability remains in effect if the claimant collects partialbenefits.Q. Will an appeal affect the payment of benefits?A. If a decision by the Administrator or the Referee awards benefits, theclaimant will receive payments even though a further appeal is pending. Ifa decision rules that a claimant is ineligible, benefits will cease unless anduntil that decision is overturned on appeal. If the final decision is not in theclaimant’s favor, the claimant may have to pay back the benefits received. Nocharges will be assessed against your account while an appeal is pending.Q. What if I receive another notice of liability from the Administratorregarding the same employee while an appeal is pending?A. You should file another appeal unless the new notice specifically tells younot to. If you are in doubt, file the appeal. If you fail to file an appeal withintwenty-one (21) days, the decision will become final.Q. Can an appeal be withdrawn?A. Yes. A claimant or employer who files an appeal may withdraw it at anytime before the Referee’s decision is issued. You should withdraw your appealonly if you decide that the Administrator’s initial decision is correct.Q. What if an appeal is late?A. It may be dismissed, in which case the Administrator’s decision will beunchanged. If you wish to appeal, do so promptly in person, by mail, by fax,or by Internet at any CTWorks Career Center or Appeals Division office. Donot wait for information or documents. You can obtain whatever you needwhile the appeal is being processed. If your appeal is late, you must indicatethe reason. If it is determined that you had good cause for filing a late appeal,the Referee will be able to hear your case.5

An appeal filed by mail must be postmarked (by the United States PostalService; private postage meters are not acceptable. If you use a privatedelivery service, it must be one approved by the IRS: Airborne Express,DHL Worldwide Express, Federal Express, or United Parcel Service.) orreceived within twenty-one (21) calendar days of the date the first noticeof potential liability was mailed to you. If the offices of the UnemploymentCompensation Department are closed on the twenty-first day, you haveuntil the next business day to file an appeal. If you file by fax or byInternet, your appeal must be received by the Department of Labor by11:59 p.m. on the twenty-first day. Fax numbers and the Board’s Internetaddress are listed on page 19.REMEMBER:APPEALS MUST BE FILED ONTIME. FOLLOW THE INSTRUCTIONSIN THE DECISION YOU RECEIVE,OR IN THIS PAMPHLET.6

VII. ONCE AN APPEAL IS FILEDQ. How will I be notified of the hearing?A. A Notice of Hearing will be mailed to you, the claimant and theUnemployment Compensation Department indicating the time, date,place, and the issues to be covered. Attached to the Notice of Hearingmay be relevant documents, such as the claimant’s fact finding statementor appeal, if these documents were not previously provided to you. Readthese documents carefully. They will help you prepare your case. Bylaw, the notice need only be mailed to you five calendar days before thescheduled hearing. In practice, the Appeals Division tries to provide noticeof a week or more. Because the notice is so short, you should start toprepare your case as soon as you are aware of an appeal.The Appeals Division Internet site contains the Online Hearing Docket,which lists all hearings within twenty-four hours of their being scheduled.If you lose your hearing notice or want the quickest possible notice ofwhen your appeal is scheduled, you should check this site.Q. What should I do if I am unable to attend the hearing?A. Notify the Appeals Division immediately and request a postponement.The telephone number of the Appeals Division office is printed at the topof the Notice of Hearing. Postponements are granted only for very goodreasons. If you or a key witness are unable to attend for any reason, makesure that you notify the Appeals Division as soon as possible before thehearing to see if any other arrangements are possible.Q. What happens if one of the parties fails to attend?A. If the party that appealed does not appear, the appeal will probablybe dismissed and the Administrator’s decision will stay the same. If theclaimant appealed and you fail to attend, the Referee’s decision may bebased solely on the claimant’s testimony. Therefore, it is very importantthat you attend the hearing unless a postponement is granted.Q. What if I have a language problem or a disability, including speechor hearing, which will make it difficult for me to participate?A. Notify the Appeals Division as soon as you can, and everything possiblewill be done to provide assistance. If you need an interpreter, the AppealsDivision will provide one for you.7

VIII. PREPARING FOR THE HEARINGQ. How should I prepare for the hearing?A. Start immediately to gather any papers relating to the issues, suchas correspondence from the claimant, union contracts, warning noticesor medical records. Also, be certain that any witnesses who have directknowledge of the events in question are available to attend the hearing.If you plan to hire a lawyer or other representative, do so as soon aspossible so that person will have time to prepare. Notify the AppealsDivision of the name and address of your representative so that personcan be informed of hearings or other proceedings. You must decidebefore the hearing whether you need representation. You will not begiven a new hearing just because you later decide that you should havebeen represented.It is your responsibility to present evidence and testimony to prove yourcase. The Referee does not investigate or contact witnesses for you.He or she will act on the basis of information in the file and evidence andtestimony presented at the hearing. The Referee will not usually be ableto consider evidence presented after the hearing.The hearing before the Referee is the only chance that you will haveto tell your story. Be prepared to tell the Referee everything you think isimportant and to present all witnesses and evidence at the hearing. TheReferee will limit the testimony to issues that are relevant to the case.You will not be allowed another hearing to present evidence or witnesseswhich you failed to offer the first time unless you had good cause for yourfailure.Q. What if I need to subpoena a witness?A. If you have an attorney, that person will issue any necessary subpoenas.Otherwise, notify the Appeals Division immediately. The Referee willdetermine whether a subpoena is necessary and, if so, arrange to haveone served.8

Q. When should I arrive for the hearing?A. At least ten minutes early. If you wish to review the case file, makearrangements to do so before the day of the hearing. In some cases, itmay be possible to review the file on the day of the hearing, but you mustconfirm this with the Appeals Division. The case file contains statementsmade by you and the claimant, copies of the Administrator’s determinationand the appeal statements, and any other documents submitted byany party to the appeal. This information will help you prepare for thehearing.Q. May I talk to the Referee before the hearing?A. The Referee generally will have no contact with you or any party outsideof the hearing. Other members of the Appeals Division staff will advise orassist you with procedural matters.Q. May I send information to the Referee before the hearing?A. Yes. This information will be made a part of the record. It must containthe name of your business, the case number, and the claimant’s name soit can be placed in the proper file. You should also mail a copy of suchmaterial to the claimant and the Administrator. Remember, however, thatdocumentary evidence submitted to the Referee before the hearingis not a substitute for live, first-hand testimony.BE ON TIME FOR YOUR HEARING.IFYOU ABSOLUTELY CAN’T ATTEND, CALLAT ONCE TO REQUEST A POSTPONEMENT.IF YOU DON’T ATTEND THE HEARING, YOUARE LIKELY TO LOSE.9

IX. WHAT GOES ON AT THE HEARINGQ. How will the hearing be conducted?A. Hearings are informal. The Referee explains the procedure and readsinto the record the relevant information on file. This may include the factfinding report and all other documents from the first hearing at the CTWorksCareer Center. You are not bound by the statements in the fact findingreport and will be given an opportunity to present your version of the factsfully. However, if your testimony differs from your fact finding statement,you should be prepared to explain why. All parties and witnesses musttestify under oath.Proper decorum is expected. The Appeals Division has zero tolerancefor workplace violence. Threatening language or actions toward staff orcustomers is not tolerated. Weapons are banned from all Department ofLabor buildings.Q. What record is made of the hearing?A. The hearing will be recorded, which is the official record of theproceeding. Make every effort to speak clearly enough to be heard andunderstood. Do not interrupt when others are speaking. Do not attempt tospeak to the Referee “off the record.” The Referee is required to record theentire proceeding. You may obtain a copy of the recording by contactingthe Appeals Division.Q. Are the rules of the hearing the same as in court?A. No. The rules of evidence do not apply. The law allows the Referee toquestion the parties and review written or printed records to ensure justiceto all interested parties.Hearsay testimony, that is repetition of statements made by personswho are not present at the hearing, may be acceptable. However, directtestimony is considered better evidence. If the claimant offers directtestimony on an issue and you reply with only hearsay evidence, theReferee will probably give greater weight to the testimony of the claimant.Whenever possible, have at the hearing the person or persons whowitnessed the events in question or who have first-hand knowledge.This means that the testimony of the foreman or supervisor is usuallymore valuable than that of the personnel director or an executive.10

Q. How can I best prove my case?A. Present the best possible evidence, including a description of eventsand circumstances by the individual primarily involved, any documentsconcerning the issue, and testimony from witnesses who observed or weredirectly involved in what happened. If the claimant’s separation was theresult of an incident involving a supervisor or a co-worker, the testimonyof the personnel director will usually not be sufficient.Depending on the issues involved, you may need to bring any of thefollowing: the claimant’s personnel file, medical records, job description,employment application, attendance and payroll records, warning notices,union contract, company rules and procedures, and police or witnessreports. You must provide copies of any documents you intend to submitto the Referee and to the claimant. Bring these copies with you to thehearing.If the claimant left work voluntarily, then it is the claimant’s responsibilityto prove that the separation was for good cause attributable to theemployer or for other reason permitted by law. However, if you dischargedthe claimant, you must prove that you did so for one of the followingdisqualifying reasons as defined by the Unemployment CompensationAct: wilful misconduct, larceny, felonious conduct, participation in anillegal labor dispute, or failure of a legally permitted drug test. Unless youare a reimbursable employer (for which there are special rules), you willbe relieved of charges if you establish one of these disqualifying causes.Be sure you know all the elements that you must establish in order toprove your case, and be prepared to offer testimony and evidence oneach element. Make sure that you present to the Referee all evidence,such as warnings and attendance records, that supports your chargesagainst the employee.Q. Who else will be at the hearing?A. The claimant will usually be present, and the UnemploymentCompensation Department may also be represented. Although the hearingis open to the public and anyone interested may attend, usually only theparties are present. If you believe that the hearing involves sensitivematters that would constitute an invasion of your privacy, you can ask theReferee to close the hearing to the public.11

Q. How will I know what to tell the Referee?A. The Referee will ask questions designed to obtain the necessaryinformation. Listen carefully, and answer directly and plainly. Give completeand accurate information, without rambling or bringing in unrelated issues.You will be permitted to question the other parties and the witnesses.Before the end of the hearing, the Referee will provide you an opportunityto add anything you feel is important and to make a closing statement.Q. What if I fail to bring something or need to obtain moreevidence?A. You should ask the Referee to continue the hearing so that you can getwhatever is needed. The Referee will grant your request only if he or shedetermines that the information is relevant and you have a good reasonfor not having it with you. The Referee will consider only information,evidence, and testimony presented prior to or at the hearing. You will notbe allowed to introduce additional evidence once the hearing is overunless the Referee has agreed to keep the record open.THE REFEREE’S HEARING IS YOUR ONLY CHANCE TO TELLYOUR STORY. MAKE SURE THAT YOU PRESENT ALL THEWITNESSES AND EVIDENCE YOU NEED TO WIN. YOU ARENOT LIKELY TO BE GIVEN ANOTHER HEARING.12

X.THE REFEREE’S DECISIONQ. What will the Referee’s decision be based on?A. Only information admitted into the record by the Referee is used todecide the case. It is your responsibility to present this information. TheReferee will not investigate or contact witnesses. The statutes, regulations,and decisions of the Board of Review and the courts guide the Referee indeciding the issues.Q. Is financial need a factor in the decision?A. No. The claimant’s financial need has nothing to do with the decision.The Unemployment Compensation Act is an insurance program designedto pay benefits to people who are unemployed through no fault of theirown and who are actively seeking work.Q. How will I be informed of the decision?A. The Referee will mail a written decision to you, your representativeand other interested parties and their agents, including the UnemploymentCompensation Department, as soon as possible. The decision will explainyour right of appeal.13

XI. DETERMINING THE EFFECT OF A CLAIM ON ANEMPLOYER’S UNEMPLOYMENT INSURANCE ACCOUNTQ. How can I determine the effect of a claim on my account?A. When an individual files a claim for unemployment compensation, heor she establishes a benefit year, which lasts for twelve months. Withinthat year, the claimant is eligible for up to twenty-six weeks of regularbenefits at his o

Q. Can an employee collect benefits while working part-time? A. Yes. The employee may be eligible for partial benefits. Two-thirds of the employee's earnings will be deducted from his or her benefits for the weeks during which the employee works part-time. An employee can continue collecting partial benefits until the weekly earnings from .

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