This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-1469

 

 

Gordy E. Dalman,

Relator,

 

vs.

 

Commissioner of Economic Security,

Respondent.

 

Filed April 30, 2002

Reversed

Lansing, Judge

 

Department of Economic Security

File No. 313501

 

 

Gordon E. Dalman, W12991 – 648 Avenue, Prescott, WI 54021-7020 (pro se relator)

 

Philip B. Byrne, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

LANSING, Judge

 

            The Minnesota Department of Economic Security denied Gordy Dalman unemployment benefits for two of the three weeks that he was unemployed in February, 2001.  Following a hearing, an unemployment law judge found that Dalman was entitled to benefits because he had shown good cause for failing to comply with the continued-request requirement that resulted in his ineligibility.  The commissioner’s representative reversed.  On appeal, we reverse the decision of the commissioner’s representative.

F A C T S

 

            Gordy Dalman was laid off January 10, 2001, and received five weeks’ severance pay.  Dalman completed an application for unemployment benefits by telephone on January 17, 2001.  He explained to the department that he would receive five weeks’ severance pay after his employment separation date.

            The department sent Dalman a letter the day after his telephone call, stating that his application had been processed and assigning a personal identification number to him.  The letter instructed Dalman that he must call Teleclaim to be paid.  It further instructed him: “CALL TELECLAIM between MONDAY, 01/29/01, and FRIDAY, 02/02/01, to request payment for the previous two weeks.”  (Emphasis in original.)

            Dalman knew that he could not receive unemployment compensation benefits for the period during which he was receiving severance pay.  Consequently, he waited until the severance payments expired and two weeks had elapsed to call Teleclaim “to request payment for the previous two weeks.”

            When Dalman called Teleclaim on February 28, 2001, he learned that his account had been closed because he failed to call Teleclaim within 14 days after the week in which he opened his account.  Dalman’s February 28 phone call reactivated his account retroactive to the previous Sunday, but the department denied him benefits for the previous two weeks.  Thus, Dalman received benefits for only one of the three weeks that he was unemployed.

            Dalman challenged his two-week ineligibility, and an unemployment law judge reversed the determination, reasoning that the department had not instructed Dalman to continue to report while collecting severance pay, and that the wording of the letter provided good cause for not calling Teleclaim until the two weeks had elapsed for which he could claim benefits. 

            The commissioner, on his own motion, ordered review and reversed the eligibility determination.  Dalman appeals, requesting that the unemployment law judge’s determination be reinstated.

D E C I S I O N

 

The construction of statutes governing eligibility and disqualification for unemployment benefits is a question of law.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996).  Appellate courts generally exercise independent review of questions of law, but accord a high degree of deference to the commissioner’s fact findings when they are incorporated in the legal conclusions.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (reaffirming that appellate courts review findings of commissioner or commissioner’s representative, not unemployment law judge). 

The question of whether an applicant has demonstrated good cause has also been considered a legal conclusion, usually incorporating fact findings that must have requisite evidentiary support in the record.  Zepp v. Arthur Treacher Fish & Chips, Inc. 272 N.W.2d 262, 263 (Minn. 1978) (applying Minn. Stat. § 268.09, subd. 1(1) (1976), requiring good cause to avoid disqualification for discontinuing employment). 

The facts underlying this appeal are essentially undisputed.  Thus, we turn to the statutory provisions that determine Dalman’s eligibility.

An applicant for unemployment benefits must have an active account to receive benefits for any event of unemployment.  Minn. Stat. § 268.085, subd. 1 (2000).  A benefit account becomes inactive if the applicant stops filing continued requests with the department or fails to file a continued request with the department within the time required.  Minn. Stat. § 268.086, subd. 1 (2000).  If an applicant fails to respond to  the department on the dates designated, the applicant must respond within 14 days following that week or show good cause for the failure to do so.  Id., subd. 4(b) (2000).

Dalman’s telephone application established an active account.  The department’s letter responding to the application instructed Dalman to call Teleclaim between Monday, January 29, 2001, and Friday, February 2, 2001, to request payment for the previous two weeks.  Because he was receiving severance pay and was not entitled to payments for the two weeks previous to January 29, Dalman did not call.  See Minn. Stat. § 268.085, subd. 3(a)(1) (2000) (defining effect of severance payments on eligibility).  Dalman’s account became inactive, and, because he was not aware that it had become inactive, he did not respond within 14 days following that week.

Dalman does not directly dispute that his account became inactive or argue that the account should only have been considered active at the expiration of the severance payments.  He contends, instead, that it was unreasonable for the department to expect him to call when the procedures were inadequately explained and he was not told that failure to call would result in his account becoming inactive.  This contention equates to a claim of “good cause” for failing to call the department.

For purposes of unemployment benefits, good cause is defined as “a compelling substantial reason that would have prevented a reasonable person acting with due diligence from filing a continued request for unemployment benefits within the time periods required.”  Minn. Stat. § 268.086, subd. 9.  Good cause does not include forgetfulness, loss of forms, return to work, inability to use the designated communication method, or a late contact resulting from an inadequate submission.  Id. 

None of the statutory exceptions to good cause apply to Dalman’s failure to call the department between the designated dates.  Thus, the dispositive question is whether Dalman’s reason for not calling Teleclaim within the designated dates provides a compelling, substantial reason that would prevent a reasonable person acting with due diligence from filing a continued request within the required time period.

As the instruction was written, Dalman could not comply.  The instruction told him to call between January 29, 2001, and February 2, 2001, to request payment for the previous two weeks.  Because of his severance pay, he could not request payment for the previous two weeks.  He had explained in his Teleclaim call to the department that he was receiving five weeks’ severance pay.  Because it was impossible to comply with the instruction, he could either call Teleclaim between January 29 and February 2 and tell them that he was not requesting payment for the previous two weeks, or he could wait to call Teleclaim until he could legitimately claim payment for the previous two weeks.

The commissioner’s representative concluded that Dalman did not establish good cause because he “was not informed that he should not report during the period that he was receiving severance pay” and if he “was not going to comply” he should at least have contacted the department for further instructions.

For two reasons, we conclude that the commissioner’s representative’s findings do not support the conclusion that Dalman failed to establish good cause.  First, the commissioner’s representative based his conclusion on a finding that Dalman knew he should report every two weeks to receive benefits.  We are unable to locate support for that finding in the record.  The instruction in the letter told Dalman to call during a specific week to request payment for the previous two weeks.  The letter provides no further direction to call Teleclaim and says nothing about a requirement to report every two weeks.  The representative refers to the handbook that the department mailed to Dalman.  The handbook was not part of the record before the unemployment law judge.  But even if we considered it as part of the record, it does not inform an applicant that he or she must call every two weeks.  The handbook states that the letter will tell the applicant when to make the first Teleclaim call.  The handbook says that, “In most cases you will be instructed to call every two weeks,” but this is not absolute and does not supersede the directions in the letter.  The handbook does not provide a basis for the representative’s finding that Dalman was “aware that he had to report every two weeks in order to receive benefits.”

Second, we can not agree with the commissioner’s representative that good cause imposes an affirmative duty to “contact the Department for further instructions” if he “was not going to comply.”  A telephone call would surely have been prudent, but the failure to call should not forfeit a claim for good cause.  The record demonstrates that Dalman believed he was complying by waiting until two week’s eligibility had elapsed before requesting payment.  The record does not support an inference that Dalman chose not to comply and chose not to contact the department for further instructions.

The record supports the conclusion that Dalman, unable to comply with the directive in the letter to report between January 29 and February 2 to request payment for the previous two weeks, resolved the conflict by putting substance over form when he waited to report until he could request payment for the previous two weeks.  The decision is objectively reasonable.  We conclude that Dalman has shown a compelling, substantial reason that a reasonable person acting with due diligence would not make the phone call and would instead wait until he had established two weeks of eligibility.

The commissioner alternatively argues that even if Dalman established good cause for his failure to contact Teleclaim based on the contents of the letter, the account was nonetheless inactive and Dalman could not obtain unemployment compensation on an inactive account.  This argument relies, in part, on an order opinion of this court, Brengman v. Comm’r of Econ. Sec., No. C6-01-860 (Minn. App. Nov. 13, 2001).  We find nothing in the reasoning of the order opinion that would cause us to reach a different conclusion.  In Brengman, the applicant failed to make a proper continued request as defined by the statute and only attempted to contact the department one time during the week in which he could reactivate his request.  It is undisputed that Dalman provided all of the required information to qualify for a continued request.

Furthermore, Minn. Stat. § 268.086, subd. 4(b), provides that “the benefit account shall be considered inactive, unless the applicant shows good cause for failing to file the continued request” within the time period requested.  (Emphasis added.)  Under the statute, a showing of good cause allows the benefit account to be considered active.  This provision comports with the provisions of Minn. Stat.   § 268.086, subd. 8, that provide for acceptance of an untimely continued request for unemployment benefits for those weeks that an applicant has shown “good cause” for failure to file within the time periods required.

Accordingly, we reverse the decision of the commissioner’s representative.

            Reversed.