This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-99-1260

 

Gary R. Anderson,

Respondent,

 

vs.

 

LTA Corporation,

Relator,

 

Commissioner of Economic Security,

Respondent.

 

Filed March 21, 2000

Reversed and remanded

Huspeni, Judge*

Department of Economic Security

File No. 2181UC99

Gary R. Anderson, 2626 Randolph Street Northeast, #2, Minneapolis, MN 55418 (pro se respondent)

 

Gerald Earl Deloss, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for relator)

 

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for commissioner)

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Employer challenges a former employee’s receipt of reemployment insurance benefits, contending the employee received wages from a third-party employer during the same time period.  The commissioner’s representative determined that, with the exception of two weeks, the claimant was eligible for all the benefits he received.  Because we are unable to conduct meaningful review in the absence of sufficient findings by the commissioner’s representative, we reverse and remand.

FACTS

 

In December 1997, relator LTA Corporation (“LTA”) terminated respondent Gary Anderson’s employment.  Upon Anderson establishing an account with the Department of Economic Security, the department made an initial determination that Anderson was eligible for reemployment insurance benefits.  LTA appealed from the initial determination and after a hearing in April l999, a reemployment insurance judge affirmed the initial determination of eligibility, with the exception of a two-week period (weeks ending January 3, 1998 and January 10, 1998) when, as a result of checks subpoenaed and presented by LTA, Anderson was found to have earnings equal to or in excess of his weekly benefit amount.[1]

Included in the evidence presented by LTA to the reemployment insurance judge were sworn statements or testimony of people claiming to have seen Anderson working for another employer or having heard from others that Anderson was working for MME Products, Inc. (“MME”) during the time he was receiving reemployment insurance benefits, and a 1998 W-2 tax form indicating income from MME in the amount of $21,606.55. 

Anderson received reemployment insurance benefits between December 1997 and June 1998, and testified at the hearing that he commenced employment with MME on July 6, 1998, at a wage of $13 per hour.  The reemployment insurance judge noted in her order: 

[LTA] alleged that [Anderson] worked for a third party employer at other times during the time [Anderson] was receiving reemployment insurance benefits.  [LTA], however, had no reliable evidence to support [LTA’s] beliefs.

 

On appeal from the reemployment judge’s decision, the commissioner’s representative affirmed.  The commissioner’s representative did not refer to evidence, or lack thereof, presented by LTA on possible employment by Anderson during the time he received benefits, other than to comment that 

the reemployment insurance judge did not find that [Anderson] had earnings subsequent to [weeks ending January 3 and January 10, 1998] during the time he collected reemployment benefits.

 

D E C I S I O N

            Our standard of review of an eligibility determination in reemployment insurance benefits cases is limited.  James v. Commissioner of Econ. Sec., 354 N.W.2d 840, 843 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).  We examine the record to determine if there is reasonable support for the commissioner’s decision, Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995), and will consider the evidence in the light most favorable to the commissioner’s decision.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            LTA contends that Anderson had earnings in excess of his weekly benefit amount during the entire period he claimed reemployment insurance benefits, and that the commissioner’s representative should have determined Anderson ineligible to receive reemployment insurance benefits for the entire period he received such benefits.  See Minn. Stat. § 268.085, subd. 5 (1998) (if a claimant has earnings equal to or in excess of his weekly benefit amount, he is not eligible for benefits that week); see also Minn. Stat. § 268.085, subd. 2(5) (1998) (a claimant is not eligible for benefits for any week in which he performs services on a full-time basis regardless of the amount of any earnings).

LTA alleges, and respondent Commissioner of Economic Security does not dispute, that the issue in this case is whether Anderson is eligible for receipt of reemployment insurance benefits.  The employee bears the burden to show that eligibility.  See Ykovchick v. Public Schools of Mpls., 312 Minn. 139, 141, 251 N.W.2d 626, 628 (1977). 

LTA argues that because Anderson bore the burden to show his eligibility for benefits, the commissioner’s representative was required to consider and make findings on the affidavits and testimony placing Anderson in employment at MME during times he was receiving benefits and on the 1998 W-2 tax form indicating more than $21,000 in wages from MME.[2]  We agree, and find support for LTA’s argument.  In Worthington Tractor Salvage, Inc. v. Miller, 346 N.W.2d 168 (Minn. App. 1984), an employer presented testimony that a claimant had been employed during the time he received reemployment insurance benefits.  The commissioner’s representative made no findings on that testimony, however, and this court remanded for further proceedings, stating: 

The commissioner should have known that the issue merited his consideration.  The record is silent as to whether such consideration was given.  The commissioner made no findings of fact on the employee’s employment status.

 

Id. at 172.

We conclude that here, as in Worthington, the issue of employment merits consideration and findings.  We are unable to conduct meaningful review without evidence of that consideration and the findings to accompany it.

            Because the commissioner’s representative’s order fails to address and is devoid of any findings concerning the substantial amount of evidence presented by LTA to demonstrate that Anderson was employed and receiving compensation for services he was providing to a third-party employer during the period he received reemployment insurance benefits, we remand for such findings.  Upon remand, the record may be reopened and additional evidence may be taken at the discretion of the commissioner’s representative.

            Reversed and remanded.

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  The determination of two weeks’ non-eligibility is not challenged on appeal.

 

[2]  LTA argues that it would have been impossible for Anderson to have earned $21,606.55 from MME while employed at $13 per hour from July 6, 1998, through the end of the year.