This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-444

 

Michelle R. Lyons,

Relator,

 

vs.

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed January 6, 2004

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 17438 02

 

Michelle R. Lyons, 626 5th Street, Proctor, MN 55810-1726 (pro se relator)

 

Lee B. Nelson, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent)

 

 

 

            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Relator challenges the commissioner’s representative’s decision that she fraudulently obtained unemployment compensation benefits.  We affirm.

FACTS

Relator Michelle Lyons was employed as a full-time legal assistant at the time she was discharged on July 30, 1999.  On August 1, 1999, relator established an unemployment-benefit account with the Minnesota Department of Employment and Economic Development (the department).  Three days later, relator underwent a scheduled low back fusion and was hospitalized for three days following surgery.  She also had outpatient carpal-tunnel surgery on November 11, 1999 to relieve numbness in her thumb and first three fingers of her right hand that she claimed persisted from the low back surgery. 

Relator received weekly unemployment-compensation benefits in the amount of $233 for the weeks ending August 14, 1999 through January 1, 2000, totaling $4,893.  She also received a “waiting week credit” for the week ending August 7, 1999.  Throughout this period, relator represented to the department that she was both able to work and available for suitable employment. 

In March 2001, relator filed a workers’ compensation claim, alleging that she had sustained work-related injuries while working for two previous employers.  The department was an intervenor in the action.  The workers’ compensation judge dismissed relator’s claim on the ground that she failed to establish that her injuries occurred in the scope and course of employment.  In his findings, the workers’ compensation judge noted that “the parties stipulated that between July 30, 1999 and January 2, 2000 the [relator] was in fact totally disabled.”  As an intervenor in the workers’ compensation action, the department received a copy of the judge’s decision.

Based on the order, the department asked relator to submit medical support for her claim for unemployment benefits from August 1, 1999 though December 31, 1999.  In response, Scott Dulebohn, M.D., completed a medical statement form on September 9, 2002 that indicated that relator was totally unable to work from August 1, 1999 through December 30, 2003. 

On September 18, 2002, the department issued two decisions.  The first was an “ineligibility determination,” concluding that relator was “ineligible for benefits starting 8/1/99 and until conditions change.”  The ineligibility determination was based on the department’s finding, underscored by Dr. Dulebohn’s opinion, that relator “was totally unable to work from 8/1/99 through an estimated date of 12/30/03.”  The second decision was a “fraud overpayment determination,” based on the fact that relator had received benefits by indicating to the department that she was able to work, when in fact she was not.  The department found that relator had been overpaid in the amount of $4,893 and ordered that she repay that amount plus an additional 25% penalty ($1,223) for her “failure to advise [the department] of [her] surgery and inability to work.”

The next day, relator notified the department of her intent to appeal, and sent an e‑mail explaining that

[t]here was an error on the report that the doctor sent.  He stated on #7 that I was unable to work from 8/1/99 – 12/30/03.  He meant from 9/9/02 (the date of my last visit) though 12/30/03.  If you look in my work records, I worked from 1/1/00 through 9/9/02 and I start working again 9/23/02 on limited hours. . . .  I am in the process of having the doctor better clarify his information[.]

 

Relator also asserted that by the time she realized the mistake on the form, she had already received the department’s determination of ineligibility.

At relator’s request, Dr. Dulebohn sent a letter to the department on October 9, 2002 that stated, in part:

There was a period of time where the patient was able to try to look for work and was able to be partially full-time employed between 8/1/99 and 9/9/02.  I do not have those dates.  They should be familiar to you. 

 

Relator appealed both of the department’s determinations.  During the hearing before the unemployment law judge, relator conceded that she was unable to work during her three-day hospital stay.  But relator asserted that she was able to work immediately following her release from the hospital because she was on light duty and could perform all the job duties of a legal assistant.  Relator stated that she went to the unemployment office twice a week, attended job interviews, sent out her resume, and would have been able to work a full eight-hour day doing office-support work had she been able to find employment.  Relator also asserted that her caseworker at the employment office told her that, since she would be out of the hospital when the benefits period started on August 7, 1999, her surgery was not an obstacle to receiving benefits.  The unemployment law judge affirmed both of the department’s determinations of ineligibility and fraud overpayment.

Relator appealed to the commissioner’s representative, who issued two orders.  The first order dismissed the ineligibility determination because more than 24 months had elapsed from the effective date of relator’s unemployment benefit account and, as a result, the department had no legal authority to issue a determination of ineligibility.  See Minn. Stat. § 268.101, subd. 3(c) (2002).  The commissioner’s representative voided the September 18, 2002 determination of ineligibility and the December 16, 2002 unemployment law judge’s decision affirming it.  This decision was not appealed.

The second order, which gives rise to this appeal, concerns the fraud-overpayment determination.  Because Minn. Stat. § 268.18, subd. 2(e) (2002) provides that a fraud-overpayment decision can be made at any time, the commissioner’s representative concluded:

While [relator’s] benefit overpayment was not determined within 24 months of the effective date of her August 1, 1999 unemployment benefits account, the department had the legal authority to determine the issue because [relator] was paid unemployment benefits through her own intentional fraud.    

 

[Relator] received a waiting week credit and was paid unemployment benefits to which she was not entitled during the week ending August 7, 1999 and continuing though the week ending January 1, 2000. . . .  [These benefits] were fraudulently obtained through [relator’s] intentional withholding and misrepresenting of material fact.

 

The commissioner’s representative concluded that relator owed $4,893 for the benefits she was overpaid, plus an additional 25% penalty “because [relator] obtained the waiting week credit and all of the unemployment benefit payments though intentional fraud.”  This appeal follows.

D E C I S I O N

The issue before this court is whether the record supports the commissioner’s representative’s conclusion that relator knowingly and willfully misrepresented material facts in order to obtain unemployment compensation benefits in violation of Minn. Stat. § 268.18, subd. 2 (2002).  When reviewing unemployment-benefit cases, we accord particular deference to the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s findings are viewed in the light most favorable to the decision and will not be overturned if there is evidence in the record that reasonably tends to sustain them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Determining whether a claimant intentionally misrepresented or misstated material facts to obtain benefits involves assessing the claimant’s credibility, which lies within the province of the commissioner’s representative.  Burnevik v. Dep’t of Econ. Sec., 367 N.W.2d 681, 683 (Minn. App. 1985).  But the commissioner’s representative’s legal conclusions are reviewed de novo.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).

Minn. Stat. § 268.18, subd. 2 addresses procurement of employment benefits by fraud.  The statute provides:

(a) Any applicant who receives unemployment benefits by intentionally misrepresenting, misstating, or failing to disclose any material fact has committed fraud.  After . . . a written determination that the applicant obtained unemployment benefits by fraud . . . the applicant must promptly repay the unemployment benefits to the fund.  In addition, the commissioner shall assess a penalty equal to 25 percent of the amount fraudulently obtained.

 

. . . .

 

(e) A determination of overpayment by fraud may be made at any time.

 

Minn. Stat. § 268.18, subd. 2. 

The commissioner’s representative concluded that relator obtained benefits through intentional fraud based on several findings, including that (1) relator “had surgery during the week ending August 7, 1999 and she had an extended period of recovery through December 1999,” (2) relator received an overpayment because she “stated she was able to work while in fact, she was unable to work due to major surgery,” and (3) relator “intentionally withheld or misrepresented information related to that surgery and her ability and availability to work by entering a ‘YES’ answer on a touch tone telephone key pad in response to the [question] ‘Did you look for work and were you available for work[],’ . . . for each of those weeks[?]”   

1.         Relator’s Ability to Work.

The term “able to work” is defined as having “the physical and mental ability to perform the usual duties of the applicant’s usual occupation or of comparable employment.”  Minn. Stat. § 268.085, subd. 14 (2002).  Relator concedes that she had surgery on August 4, 1999 and was unable to work during her subsequent three-day hospital stay.  But she claims that she was able to work from August 7 on.  This evidence is directly countered by relator’s stipulation at her workers’ compensation hearing in May 2002 that she was “totally disabled” between July 30, 1999 and January 2, 2000.  Moreover, her treating physician, Dr. Dulebohn, indicated that relator left her employment on August 1, 1999 due to disability and was prevented from performing all types of work until December 30, 2003.  

While Dr. Dulebohn submitted a letter to the department in an effort to clarify his earlier opinion, its language is not definitive with respect to relator’s period of disability.  The letter states that “[t]here was a period of time where [relator] was able to try to look for work and was able to be partially full-time employed between 8/1/99 and 9/9/02.  I do not have those dates.  They should be familiar to you . . . .”  Given the stipulation, Dr. Dulebohn’s subsequent tentative language prompted by relator’s request, and the contrary evidence in the relator’s medical records, the evidence is sufficient to sustain the commissioner’s representative’s determination that relator was unable to work from August 1, 1999 through December 31, 1999.

2.         Relator’s Availability for Suitable Employment.

To be eligible for benefits, an applicant must also be “available for suitable employment” and “actively seeking” employment.  Minn. Stat. § 268.085, subd. 1(2) (2002).  Because the commissioner’s representative’s fraud-overpayment decision was based on findings that relator intentionally withheld and misrepresented information relating to her surgery and availability for work, we address whether relator was “available” for work, regardless of the fact that the eligibility determination was dismissed. 

The term “available for suitable employment” is defined as follows:

(a) “Available for suitable employment” means an applicant is ready and willing to accept suitable employment in the labor market area.  The attachment to the work force must be genuine.  An applicant may restrict availability to suitable employment, but there must be no other restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment.

 

. . . .

 

(c) An applicant who is absent from the labor market area for personal reasons, other than to search for work, is not “available for suitable employment.”

 

(d) An applicant who has restrictions on the hours of the day or days of the week that the applicant can or will work, that are not normal for the applicant’s usual occupation or other suitable employment, is not “available for suitable employment” . . . .

 

Minn. Stat. § 268.085, subd. 15 (2002). 

   

Even if we presume that relator was actively seeking employment, the record demonstrates that relator misrepresented her availability for work.  Although relator argues that she could have “easily” worked eight-hour days immediately following her release from the hospital, this argument lacks credibility, given that relator’s medical records indicate that she was experiencing substantial pain, had a 20-pound lifting restriction and a 10-pound carrying restriction, could not sit or stand “for long periods of time,” and attended therapy sessions two or three times per week.  And, as already noted, relator stipulated at the workers’ compensation hearing that she was “totally disabled” between July 30, 1999 and January 2, 2000, and her physician’s initial medical statement indicated that relator was prevented from performing all types of work between August 1, 1999 and December 30, 2003. 

Accordingly, the record supports the commissioner’s representative’s finding that relator was not available for suitable employment because she was “absent from the labor market area for personal reasons, other than to search for work” and had “restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent[ed her from] accepting suitable employment.”  Minn. Stat. § 268.085, subd. 15(a), (b) (2002).  These findings support the commissioner’s representative’s conclusion that relator misrepresented her availability for work during the weeks she received benefits.

            Affirmed.