This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Linda A. Johnson,



Commissioner of Economic Security,


Filed April 8, 1997


Schumacher, Judge

Department of Economic Security

File No. 6412UCOP96

Linda A. Johnson, Post Office Box 44175, Eden Prairie, MN 55344-1175 (Pro Se Relator)

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

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.



Linda A. Johnson appeals from the Commissioner's representative's decision that she is ineligible for four weeks of reemployment insurance benefits on a future claim, arguing she did not willfully misrepresent to respondent Department of Economic Security that she did not have a prior workers' compensation claim when she applied for reemployment insurance benefits. We affirm.


On April 19, 1995, Johnson was injured by a coworker's assault while working for McGlynn's Bakeries. Johnson could not work and became separated from employment at the end of May 1995.

On June 7, 1995, Johnson signed a workers' compensation claim petition for temporary partial workers' compensation benefits from April 20, 1995 to "present and continuing." McGlynn's and its workers' compensation insurer disputed Johnson's claim.

On October 1, 1995, Johnson filed a "Certification for Reemployment Benefits" form, claiming benefits from September 17 to 30, 1995. On that form, Johnson checked "no" to whether she had received or asked for workers' compensation. On October 15, 1995, Johnson similarly checked "no" to the same question on a form to extend reemployment insurance benefits from October 1 to 14, 1995. Overall, Johnson received $3,206 in reemployment insurance benefits from September 24, 1995 to March 23, 1996.

On May 29, 1996, Johnson agreed to a stipulated settlement with McGlynn's and its workers' compensation insurer. The Department intervened, claiming it overpaid Johnson the amount of her reemployment insurance benefits during the period covered by her workers' compensation claim. Johnson reimbursed the Department for $1,603 out of her stipulated workers' compensation benefits.

On June 28, 1996, the Department determined it had overpaid Johnson $1,603 and held her ineligible for four weeks of benefits on a future claim. Johnson was disqualified because she did not inform the Department that she had a workers' compensation claim when she filed for reemployment insurance benefits.

On appeal, the reemployment judge conducted an evidentiary hearing and affirmed the Department's decision. The decision was affirmed by the Commissioner's representative. Johnson appeals by writ of certiorari.


This court reviews the findings of the Commissioner's representative, not those of the reemployment insurance judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The Commissioner's representative's findings should be viewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether Johnson is ineligible for four weeks of reemployment insurance benefits under Minn. Stat. § 268.18, subd. 2 (1996), however, is a question of law and this court need not defer to the conclusion of the Commissioner's representative. See id.

Generally, a claimant

shall not be eligible to receive benefits for any week with respect to which the claimant is receiving, has received, or has filed a claim for * * * (3) compensation for loss of wages under the workers' compensation law of this state * * *.

Minn. Stat. § 268.08, subd. 3 (1996). A claimant who

files a claim for or receives benefits by knowingly and willfully misrepresenting or misstating any material fact or by knowingly and willfully failing to disclose any material fact which would make the claimant ineligible for benefits under sections 268.03 to 268.23 is guilty of fraud.

Id. § 268.18, subd. 2 (1996). After the Commissioner has determined the facts indicating fraud in claiming reemployment insurance benefits, the Commissioner may

disqualify an individual from benefits for one to 52 weeks in which the claimant is otherwise eligible for benefits following the week in which the fraud was determined.


Johnson argues she did not willfully misrepresent to the Department that she had not asked for workers' compensation because she was suffering from a head injury at the time she signed the workers' compensation claim petition, and therefore did not remember that event when she petitioned for reemployment insurance benefits three months later.[1] We disagree.

The Commissioner's representative found that Johnson's claim that she did not remember asking for workers' compensation was not credible. The record shows that Johnson first testified to the reemployment judge that she "had forgotten that [she] had even sought out an attorney in June." Johnson later testified, however, that

the assistant prosecutor advised me that I file for unemployment because he said it's better if you file for unemployment and for Workers' Comp, so that if you don't get the one, at least you'll get the other * * *. So, based on his recommendation that I file for unemployment, I did that.

* * * *

He asked me if I had an attorney and I told him that I had talked to Sommerer and Schultz and he asked me if it was Mike Schultz and I said, yes. And he said, well, ask Mike Schultz to help you with your unemployment. And Mike Schultz refused. And he refused to advise me, he refused to help me.

Johnson spoke to the assistant prosecutor at a mid-September 1995 hearing regarding the coworker who assaulted her. Johnson signed the form for reemployment insurance benefits two weeks later on October 1, 1995.

It is clear that when Johnson spoke to the assistant prosecutor in September 1995, Johnson remembered she already had an attorney for her workers' compensation claim. The Commissioner's representative's finding that Johnson's claim was not credible is not clearly erroneous. Johnson willfully misrepresented that she did not ask for workers' compensation when she filed for reemployment insurance benefits.

Finally, we have considered the other issues raised in Johnson's letter brief and find them to be without merit.


[ ]1 Johnson included numerous medical reports concerning her head injury in her papers filed with this appeal. We note that those medical records were not filed at the hearing before the reemployment judge, therefore, they are not part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (record consists of papers and exhibits filed in the trial court, and the transcript); Imprint Techs., Inc. v. Commissioner of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995) (matters not received into evidence at the trial may not be considered on appeal).