This opinion will be unpublished and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

A03-965

 

James L. Hansen,
Relator,

vs.

Central Lock & Safe Company, Inc.,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed April 27, 2004

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 1285 03

 

Ian S. Laurie, Laurie & Laurie, P.A., 508E Parkdale Plaza Building, 1660 South Highway 100, St. Louis Park, MN  55416 (for relator)

 

Mark C. McCullough, Skaar & McCullough, The Colonnade, Suite 730, 5500 Wayzata Boulevard, Minneapolis, MN  55416 (for respondent Central Lock & Safe Company)

 

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

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

            Relator challenges the decision of the commissioner’s representative that relator is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

Relator James L. Hansen was employed by respondent Central Lock & Safe Company from May through December 2002.  On December 12, while using the company vehicle, Hansen was involved in an accident.  Hansen had to be extricated from the vehicle and suffered numerous injuries. 

Hansen returned to work on December 18.  When asked about his condition by Daryl Metzger, the company president, Hansen replied, “I got a couple stitches in my finger, but, otherwise, [I am] ok.”  Later that morning, Central Lock’s insurance company contacted Hansen to discuss the accident.  During the course of the discussion with the insurance representative, Hansen reported more extensive injuries, including bruises and stitches in his right hand, a fractured nose, and pain in his shoulder, chest, stomach, and right thigh. 

After talking with Hansen, the insurance representative contacted Metzger and asked if he was aware that Hansen had some “medical issues.”  When Metzger asked the insurance representative to describe the nature of Hansen’s medical issues, the insurance representative told Metzger that Hansen had directed the insurance representative not to disclose Hansen’s medical condition to Central Lock.  Later that day, Metzger asked Hansen to disclose what he had told the insurance representative about his injuries that he had not reported to Metzger.  Hansen responded that he had not told the insurance representative anything different.  Metzger fired Hansen for giving an account of his injuries to Metzger that differed from what he reported to the insurance representative. 

When Hansen applied for unemployment benefits, the Minnesota Department of Employment and Economic Development determined that Hansen was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  Hansen appealed the department’s determination of disqualification and an unemployment law judge reversed the determination after finding that Hansen’s actions did not constitute employment misconduct.  Central Lock then appealed the unemployment law judge’s decision to the commissioner’s representative.  Finding that Hansen did not disclose all of his injuries to Central Lock and that his failure to do so was intentional and evinced Hansen’s intent to disregard his duties and obligations to Central Lock, the commissioner’s representative determined that Hansen was disqualified from receiving unemployment benefits.  This appeal followed. 

D E C I S I O N

Hansen argues that the record does not support the finding that his actions constitute employment misconduct within the meaning of Minn. Stat. § 268.095 (2002).  We review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the findings in the light most favorable to the decision, Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989), giving deference to the credibility determinations made by the commissioner’s representative, Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  When the evidence reasonably sustains the findings, they will not be disturbed.  Ress, 448 N.W.2d at 523.

Whether an employee committed employment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes employment misconduct is a question of law, which we review de novo.  Ress, 448 N.W.2d at 523. 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined as “(1) any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or [that] disregards the employee’s duties and obligations to the employer or (2) negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002).  “[I]nefficiency, inadvertence, simple unsatisfactory conduct, [and] poor performance because of inability or incapacity  . . . are not employment misconduct.”[1]  Id.

An employee’s actions constitute employment misconduct when the actions are (1) intentional and (2) in disregard of either the standards of behavior that the employer has a right to expect or the employee’s duties and obligations to the employer.  Minn. Stat. § 268.095, subd. 6(a)(1); Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Conduct is intentional if it is “deliberate” and “not accidental.”  Houston, 645 N.W.2d at 149.  But when an employee acts without intent to be disobedient or to harm the employer, there is no employment misconduct.  Sticha v. McDonald’s No. 291, 346 N.W.2d 138, 140 (Minn. 1984) (finding no disqualifying misconduct where employee inadvertently misled employer to believe employee was taking time off for funeral rather than wake); Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 494 (Minn. App. 1987) (finding no employment misconduct where employee innocently believed that she was acting in accordance with employer’s policy). 

Hansen argues that the record does not support the finding that he intentionally misled his employer.  We disagree.  The record establishes that Hansen gave a markedly different account of his injuries to the employer’s insurance company from what he gave to his employer.  Hansen then directed the insurance representative not to disclose the nature or extent of his injuries to the employer.  When asked directly whether the injuries disclosed to the insurance representative were different from those disclosed to the employer, Hansen falsely denied any difference.  That Hansen directed the insurance company not to disclose his injuries to Central Lock and, when confronted, falsely stated that his disclosures to the employer and the insurance company were not different reasonably supports the finding that Hansen acted intentionally rather than inadvertently. 

We next consider whether Hansen’s conduct evinced an intent to ignore his duties and obligations or the standard of behavior that Central Lock had a right to expect from him.  See Houston, 645 N.W.2d at 150.  Central Lock had an obligation to report to its insurer injuries sustained by Hansen during the course of employment.  Minn. Stat. § 176.231 (2002) (providing that an employer must report serious injury that occurs during the course of employment within 48 hours).  Central Lock, therefore, had a right to expect Hansen to report his injuries truthfully to the employer.  Hansen testified that his injuries occurred during the course of employment.   Hansen acknowledged that he knew Central Lock had a duty to report to the workers’ compensation insurer any employee injuries sustained during the course of employment.  Yet he failed to disclose his serious injuries to Central Lock, directed the insurance company not to do so, and was untruthful in response to the employer’s request for full disclosure. 

We conclude that the facts reasonably support the determination of the commissioner’s representative that Hansen’s conduct evinced an intent to disregard the standards of behavior that Central Lock had a right to expect.  Accordingly, we affirm the decision of the commissioner’s representative that Hansen is not entitled to receive unemployment benefits because he was discharged for employment misconduct. 

Affirmed.

 

 

 



[1]  The definition of employment misconduct was amended by the legislature, effective August 1, 2003.  See 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002).  The amended definition provides that employment misconduct is any intentional, negligent, or indifferent conduct that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee or that demonstrates a substantial lack of concern for the employment.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  The events leading to Hansen’s discharge occurred prior to the effective date for the new definition of employment misconduct.  We, therefore, review the record using the definition of employment misconduct in effect at the time of the conduct.  See Chapman v. Davis, 233 Minn. 62, 65, 45 N.W.2d 822, 824 (1951) (holding that no law shall be construed to apply retroactively unless “clearly and manifestly” intended); In re Wage and Hour Violations of Holly Inn, Inc., 386 N.W.2d 305, 312 (Minn. App. 1986) (concluding that the new provisions of an amended statute must be construed as effective only from the date when the amendment became effective and not retroactively unless specifically prescribed).