This opinion will be unpublished and

may not be cited except as provided by

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




Marjorie A. Westerman,



Amherst H. Wilder Foundation,


Commissioner of Economic Security,


Filed September 22, 1998


Huspeni, Judge

Department of Economic Security

Agency No. 7530UC97

Arlo H. VandeVegte, Arlo H. VandeVegte, P.A., 1850 W. Wayzata Blvd., P. O. Box 39, Long Lake, MN 55356 (for relator)

Elena Ostby, Debra K. Revzen, Briggs & Morgan, P.A., W2200 First National Bank Bldg., St. Paul, MN 55101 (for respondent Amherst H. Wilder Foundation)

Kent E. Todd, Minnesota Department of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



Relator challenges the decisions of respondent Commissioner of Economic Security that relator is not entitled to reemployment insurance benefits and was overpaid; she also argues that the decision violates the Minnesota Human Rights Act. Because evidence supports the commissioner's findings, we affirm.


Relator Marjorie Westerman, an L.P.N. employed by respondent Amherst H. Wilder Foundation (Wilder), had surgery on her ulnar nerve that permanently weakened her right arm and hand. Despite further corrective surgery and therapy, relator can no longer perform all the functions of an L.P.N. Wilder kept her job open for eight months after the surgery, then terminated her.

Relator applied for reemployment insurance benefits, which she initially received in the amount of $199. On the form she filled out, relator answered "No" to the question, "Are you fully able to work?" A Department of Economic Security claims representative telephoned relator to explain that, in order to receive benefits, she needed to answer that question "Yes" and that a doctor had said relator was able to work within restrictions. Relator repeated that her answer to the question was "No" and was then told she would be ineligible for benefits; she subsequently received notification that she was ineligible and had been overpaid $199.

Relator challenged that decision, and an evidentiary hearing was scheduled. At the hearing, relator testified that she had worked as an L.P.N., including about 10 years with Wilder, that she will never be able to perform some of the functions of an L.P.N. again, and that while she is willing to perform a job she is capable of, she does not know what other job she could do because she would have to return to school to become an R.N.

In response to questions from the reemployment insurance judge, relator testified that, given her physical limitations, she does not know if there are any jobs she can perform inside or outside the nursing field, that she did not apply for any jobs because of her physical condition, and that her job search was limited to looking in the newspaper and making a couple of phone calls.

The reemployment insurance judge then issued a decision that relator was ineligible for benefits because she did not meet the "able to work, available for work, and actively seeking work" requirement of Minn. Stat. § 268.08, subd. 1 (1996). Relator appealed. A representative of the Commissioner of Economic Security upheld the decision, finding inter alia that:

(2) * * * [Relator], who is right-handed, has lost significant feeling in the fingers of her right hand and can no longer perform fine motor functions with that hand. [Relator's] right arm is also significantly weakened.

(3) [Relator] has been employed as an LPN since her graduation from nursing school in 1967. [Relator] has no significant training or experience in any other employment areas. [Relator's] physical conditions prevent[] her from working as an LPN. [Relator] is unsure whether there are any other jobs in the labor market which, given her background, training and physical limitations, she would be able to perform.

(4) [Relator] has not engaged in an active work search since her application for reemployment insurance benefits. [Relator]'s work search has consisted of looking for possible employment in the local newspaper. [Relator] has not submitted any applications for possible employment or made any in-person contacts for employment since her application for benefits. * * *

(5) On her biweekly certification for benefits form for the period ending August 9, 1997, [relator] certified that she is not fully able to work and available for work.

The commissioner also noted that relator had submitted a doctor's statement that she was permanently disabled and unable to work. A separate decision upheld the prior determination that relator had been overpaid $199 in benefits.

Relator challenges the commissioner's findings that she is not able to work, available to work, and actively seeking work, and argues that the decisions violate the Minnesota Human Rights Act by discriminating against her on the basis of her disability.


1. The findings

The findings of the commissioner's representative must be viewed in the light most favorable to that decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed. White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Relator does not dispute that her own testimony and documents in the record provide evidence tending to sustain the commissioner's findings; however, she challenges those findings on other grounds.

A. The finding that relator is not able to work

The commissioner's representative's finding that relator was not "able to work" is supported by her testimony on her own physical condition and by her lack of knowledge of any job she can perform given that condition. Relator alleges, however, that the commissioner's representative found she was not fully able to work and claims this is not the proper standard. Actually, the finding was that "on her biweekly certification for benefits form * * * [relator] certified that she is not fully able to work * * *."

Relator challenges the wording of the question on the biweekly certification for benefits form, arguing that "fully" is not part of the language of either Minn. Stat. § 268.08, subd. 1, or Minn. R. 3305.0400 (1995), defining the phrase "able to work" in the statute. But the correctness of the wording on a department of economic security form is beyond the scope of review of this court.

Relator also objects to the commissioner's representative's reliance on a doctor's report stating relator was permanently disabled and unable to work. She does not dispute that there is such a report, but argues that another doctor submitted a report indicating that relator could do some type of work. However, this court views the findings in the most favorable light and leaves them undisturbed if there is evidence tending to sustain them. Id. The existence of some opposing evidence does not provide a basis for overturning the findings.

Relator also offers the denial of her social security benefits as evidence opposing the finding that she was not able to work. The social security administration told relator that although she could not do her past work, i.e., the work of an L.P.N., she could do work that is not physically demanding based on her age, education, and past work experience. The commissioner's representative gave greater weight to relator's testimony that she was unable to work than to the denial of social security benefits.

While we agree that the evidence provided by relator's testimony provides ample support for the finding that she is not able to work, we cannot agree with respondent Wilder's position that relator's assertion of her inability to work to the social security administration precludes her from asserting here that she is able to work. We find Wilder's reliance on Moore v. Payless Shoe Source, 139 F.3d 1210 (8th Cir. 1998), petition for cert. filed, __ U.S.L.W. __ (U.S. July 20, 1998) (No. 98-5286), misplaced. Although Moore upheld summary judgment dismissing a claim under the Americans with Disabilities Act brought by a claimant who, like relator here, asserted to the social security administration that she was unable to work, the decision was based on the claimant's failure to provide evidence that she was qualified for the job she wished to hold despite her disability, not on the claimant's assertion to the social security administration.

[T]his court, [i.e. the eighth circuit] like most Circuits to consider the issue, has declined to hold the ADA plaintiff judicially estopped to prove he or she is a qualified individual with a disability for purposes of [the ADA] simply because he or she also applied for Social Security benefits.

Id. at 1212. Contrary to Wilder's argument, and even if Moore were binding on this court, that case does not hold that a claimant cannot assert inability to work in one context and ability to work in another.[1]

B. The finding that relator is not available for work

Minn. R. 3305.0400, subpt. 2B (1995), provides that "[n]ormally a claimant is required to be * * * available for full-time work for all shifts which are customary for the occupation." Minn. R. 3305.0500, subpt. 1 (1995), defining "available for work," provides:

Except as provided in part 3305,0400, subpart 2, item B, a claimant is considered available for work only if ready and willing to accept full-time suitable work. There must be no restrictions, either self-imposed or created by circumstances, which prevent accepting full-time work. A restriction does not prevent accepting full-time work if there are favorable prospects for obtaining full-time work within the restrictions within a reasonable period of time.

Relator testified that there is a restriction, i.e., her physical condition, that prevents her accepting full-time or part-time work as a nurse and that she is unaware of any other work, inside or outside the nursing field, within her restriction. Within the meaning of the rules, relator is not available for work: she testified that she knows of no work that she could do, and argues that because of her inability to write, she would have great difficulty in performing many jobs, not merely the job of an L.P.N.

C. The finding that relator is not actively seeking work

The commissioner's representative also found that relator is not actively seeking work.

A claimant must make reasonable, diligent efforts to actively seek suitable work for each week for which he or she files a claim. Reasonable, diligent efforts are those that a person in similar circumstances would make if genuinely interested in obtaining suitable employment under the existing conditions in the labor market area. A claimant who fails to make reasonable, diligent efforts to actively seek suitable work or who limits the search to positions that are not available or are above the claimant's training, experience and qualifications is not actively seeking suitable work.

Minn. R. 3305.0600, subpt. 1 (1995). Relator testified that her search for work had been limited to looking in the newspaper and making a few calls about nursing jobs that she knew she could not perform. She performed none of the eight acts enumerated as possible requirements for showing that work has been sought. See id. subpt. 2, (1195).

Relator argues that there is no evidence that the commissioner's representative considered "the employment opportunities as well as the qualifications of the claimant and normal practices and methods of seeking work" in determining the adequacy of the number of contacts made in seeking work, relying on Minn. R. 3305.0600, subpt. 3 (1995). Relator's argument fails for two reasons. First, the subpart she relies on is irrelevant: relator made either no contacts or very minimal contacts with potential employers; second, the commissioner's representative is not required to furnish "evidence" of compliance with the rule.

The evidence sustains the commissioner's representative's findings that relator is not able to work, available for work, or actively seeking work; those findings in turn support the determinations that she is ineligible for benefits and was overpaid.

2. The alleged MHRA violation

Relator claims that the administrative practices of the department of economic security discriminated against her on the basis of her disability in violation of the Minnesota Human Rights Act (MHRA). Relator argues that she is a qualified disabled person with respect to public services within the meaning of the MHRA, that she is therefore entitled to the aids and services necessary for her participation in obtaining reemployment benefits for which she was otherwise qualified, and that she was denied access to those benefits because the department's form asking if applicants are fully able to work discriminatorily impacts disabled persons.

This argument is outside our scope of review: relator is challenging not the decision, but the department's rules and policies. If, as relator implies, the statutes and rules governing reemployment insurance benefits need to be augmented with specific provisions for the disabled, it is a matter for the legislature and the department, not this court.

The evidence supports the commissioner's representative's findings that relator is not able to work, available for work, or actively seeking work within the meaning of the statute.


[1] Relator also relies on Minn. Stat. § 268.09, subd. 1a(6) (Supp. 1997), providing that a claimant who quits employment is disqualified for benefits "unless the claimant quit the employment because of the claimant's serious illness, provided that the claimant made reasonable efforts to retain that employment in spite of the serious illness." Relator's reliance on the statute is misplaced for three reasons: first, the statute did not come into effect until August 1, 1997, after relator's employment had been terminated; second, the statute's purpose is defining and distinguishing between "quit" and "discharge"; and third, relator did not in fact quit, she was terminated by respondent Wilder.