This opinion will be unpublished and

may not be cited except as provided by

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




Raymond Campbell,



R.N.W. Associates,


Commissioner of Economic Security,


Filed May 20, 1997

Reversed and remanded

Crippen, Judge

Minnesota Department of Economic Security

File No. 5848 UCOP 96

Raymond Dee Campbell, 350 Prairie Road, Monticello, MN 55362 (Relator Pro Se)

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

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Mulally, Judge.[*]



Relator received weekly reemployment benefits between July 31 and September 2, 1995. He challenges the order from the Commissioner for Economic Security that he repay $554 for two weeks of the benefits and be disqualified from receiving benefits for three weeks in the future. The order was based on information received from relator's employer that indicated he had returned to work on August 21, two weeks before the date stated in his application for reemployment benefits. We reverse the Commissioner's decision because the Commissioner's representative improperly disregarded evidence that relator remained unemployed through September 2.

The Commissioner's representative refused to have the case reheard to consider relator's evidence that he was out of work for five weeks. We also reverse this decision and remand the matter to a reemployment judge for an evidentiary hearing.


Relator became unemployed at the end of July 1995 and received benefits for all four weeks of August. In responding to a Minnesota Department of Economic Security inquiry, relator's former employer indicated that he worked the last two weeks in August (weeks ending August 26 and September 2, 1995). This report led to a department decision that an overpayment to relator had occurred.

Relator was advised of the overpayment determination in June 1996. Shortly thereafter, he reported to the department that a mistake had been made and that he would obtain his employer's record of his compensation to verify that he did not work the last two weeks of August. Ten days later he forwarded a copy of his employer's computer record that he believed verified his claim. The record showed that he did not receive compensation for five consecutive pay dates--August 10, 17, 24, 31 and September 7, 1995. In an accompanying letter, he explained that paychecks he received corresponded to work done for the previous week. This information contradicted an indication in the initial employer's report that paychecks issued on September 14 and September 21 were compensation for work done during the last two weeks in August.

On July 18, the Commissioner notified relator that a reemployment insurance judge would hear the issue of his overpayment determination on July 30, 1996. Relator did not appear, explaining later that he had a work conflict, and relied on his earlier submission of facts to show that a mistake had been made. In his letter to the department on June 24, 1996, he explained:

I hope that you are able to find the enclosed information as being sufficient enough to alter the overpayment and unemployment disqualification determination. I never intended to commit fraud against your department. I simply feel that the information you received earlier was incorrect.

There being no other appearances for the July 30 hearing, the judge determined the case on the file. Not commenting on the submission of the information by relator in June, and acting solely on the initial employer's report, the judge concluded that an overpayment had occurred. Receiving notice of this decision and seeing no comment on the information he had provided earlier, relator (a) asked for an appeal, (b) stated that he was unable to attend the administrative hearing due to a work conflict, (c) indicated that he had felt confident that the information he submitted was sufficient to correct the employer's initial report, (d) speculated that the judge had overlooked the material he submitted in June, (e) resubmitted his employer's computer record, (f) further explained that his employer paid its employees each Thursday for work done the previous week, and (g) reiterated his initial statement that he did not return to work until September 4, 1995.

Upon review of the matter, the Commissioner's representative considered the information relator had submitted earlier, but concluded (a) that relator's evidence was "consistent" with the employer's initial report because both reports indicated that relator received paychecks on September 14 and 21 and (b) that the initial report constituted sufficient evidence that these checks could be credited to work done in the last two weeks of August. The Commissioner's representative considered but rejected the opportunity to remand the case for a rehearing on relator's claim of a mistake.


1. Finding

On appeal, we review the decision of the Commissioner, rather than that of the reemployment insurance judge. Tuff v. Knitcraft, 526 N.W.2d 50, 51-52 (Minn. 1995). Viewing the evidence in the light most favorable to the Commissioner's factual determinations, we will uphold the representative's findings of fact unless the evidence does not reasonably tend to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

The Commissioner's representative premised his decision on the finding that relator's submissions to the department were "consistent" with an initial employer's record that suggested that relator had worked during the last two weeks of August 1995. This finding is not reasonably sustained by the record and is erroneous. In light of submissions by relator, the Commissioner had two inconsistent pieces of information from the employer. First, the initial employer's report suggested that relator was paid on September 14 for the week of August 20, 1995--the fourth week after his unemployment began. This report is clearly contradicted by the employer's computer record, which showed that relator was not paid for five consecutive weeks. Moreover, the Commissioner's finding of consistency in the record depends completely on disregarding relator's written statements in June and September 1996 that his employer issued paychecks each Thursday that corresponded to work done the previous week, so that checks issued on September 14 and 21, 1995, were for work done the weeks of September 3 and 10.

The Commissioner's representative erred in finding that relator's evidence was consistent with an earlier departmental finding. Because the erroneous finding is critical to the decision against relator, we reverse this decision.

2. Rehearing

Before looking at the evidence in the case, the Commissioner addressed the question of whether relator had good cause for his failure to appear at the evidentiary hearing. The Commissioner determined that a rehearing was inappropriate because relator only had explained that he was unable to take time off work for the initial administrative hearing, but did not state that he attempted to take time off work. Further, the Commissioner observed that relator did not volunteer that he could appear for a rehearing. We accord deference to the Commissioner on a decision to refuse remanding a case for rehearing. Goodwin v. BPS Guard Servs., Inc., 524 N.W. 2d 28, 30 (Minn. App. 1994).

It is evident in the submissions of relator to the Commissioner that he had anticipated no need to attend the administrative hearing in July 1996. The record confirms the reasonableness of this expectation. The information he furnished suggested that a mistake had been made in the initial report. The record provides no explanation for the choice of the reemployment insurance judge to consider the case without giving attention to the written submissions that contradicted information previously submitted to the department.

Nothing in the notices sent to relator suggests that the judge would ignore his written submissions in the event that he did not attend the hearing. And such a result is not suggested by any applicable statutes or rules on reemployment benefit appeals. See Minn. Stat. § 268.105 (1996); Minn. R. 3310.2901-.2928 (1995). Even if the written submissions were not considered as evidence, they were sufficient to prompt a simple inquiry about the initial suggestion that salary paid late in September was for work done in August. Finally, we find nothing in the record to confirm the expectation of the Commissioner's representative that relator would not appear for a rehearing.

We conclude that the circumstances here present a compelling case for a rehearing, requiring that we reverse the denial of this relief notwithstanding our usual deference to the Commissioner on the subject. The record indicates that relator successfully presented, through two administrative appeal proceedings, the existence of a serious fact question underlying the department's determination that he had been overpaid benefits. If any explanation of the record is more plausible than another, it is that the initial employer report involved a simple clerical error. Whether or not this is true, a hearing aimed at finding the facts readily can resolve the issue. Assuming that relator will reiterate his observation that paychecks he received in September were not for work in August, the matter will be put to rest by an uncomplicated call for an explanation of the employer's initial report.

Reversed and remanded.

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