This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-98-375

Joanne L. Murphy,
Relator,

vs.

Commissioner of Economic Security,
Respondent.

Filed October 6, 1998
Reversed and remanded
Amundson, Judge

Department of Economic Security
File No. 8860UC97

Joanne L. Murphy, 6056 West Broadway, Suite 14, New Hope, MN 55428 (pro se relator)

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

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Relator Joanne Murphy appeals the commissioner's representative's determination that her internship was not approved training, rendering her ineligible for reemployment benefits and his conclusion that she was overpaid benefits for the period before the internship began. We reverse the determination of overpayment and remand for further development of the record on the approved training issue.

FACTS

Relator Joanne Murphy, who received a high school diploma in 1956, worked full-time as an administrative assistant from 1992 until August 1997 at Interfaith Outreach and Community Partners, a nonprofit organization that performs social services for the poor in the western suburbs of Minneapolis. She had previously worked for twelve years as a secretary and customer service representative at Conoco Oil Company. Murphy's duties at Interfaith included three to five hours per day of computer data entry work as well as general office chores and supervision of volunteer receptionists.

Since 1989, Murphy has suffered from fibromyalgia, which, although fluctuating in severity, has been diagnosed as permanent. Murphy testified at the evidentiary hearing that this disease, characterized by muscle pain and weakness, makes it painful for her to perform computer work for long periods of time and that her physician advised her that it would be "very difficult" for her to continue work as an administrative assistant. On a form statement, Murphy's physician averred that Murphy had "limited ability to work," explaining her limitations as follows:

Prolonged sitting or standing over 1 hr. such as at computer terminal. Repetitive tasks also limited. Able to perform office [sic] with breaks every hour to move and stretch.

Murphy testified that while working at Interfaith she would take days off from work when her pain became too great and then would resume her duties "as much as [she] could."

From 1992 to 1995, Murphy had served on the advisory board of an organization called Amethyst Counseling Service. In 1995 and 1996, Murphy worked part-time in the evenings for Amethyst as a paid but uncertified chemical dependency counselor. Seeking a career that would involve less computer work, Murphy enrolled in classes at Metropolitan Community College in order to obtain a chemical dependency counseling certificate. She finished the coursework in June 1996 but needed to complete two internships in order to obtain certification. Murphy completed one unpaid internship between February and August 1997 by working evenings.

Murphy testified that Amethyst actively recruited her for a full-time paid internship as a chemical dependency counselor. Murphy resigned from Interfaith in August 1997 to accept the position with Amethyst, which she began on September 2, 1997. But Amethyst terminated Murphy's employment on September 4; no reason was given, but Murphy testified that she believed it was because she "observed some breaches of confidentiality." On September 7, Murphy applied for reemployment insurance; she received $242 per week for three weeks in September 1997.

On October 6, 1997, Murphy began an unpaid internship as a chemical dependency counselor at Fairview Recovery Service. On October 10, an adjudicator for the Department of Economic Security (DES) declined to designate the internship as approved training, concluding that Murphy had marketable skills and good employment prospects in view of her 25 years of experience as an office manager. Murphy's benefits were discontinued and she appealed to a reemployment insurance judge. Murphy testified at the evidentiary hearing that she had not been instructed as to what type of jobs she needed to seek and had looked at job postings for administrative assistants, but that all those available required extensive computer work. She also testified that she would have continued working at Interfaith if she had not received an offer from Amethyst and that she was not willing to quit the internship to accept other work.

In December 1997, the judge affirmed the adjudicator's decision, concluding that

[t]he claimant is able to perform computer and other duties three to five hours per day as she previously did in her prior employment with short breaks between each hour of continuous computer duties or longer periods while performing other tasks during the eight-hour workday. Work for which the claimant is skilled is available in the local market area.

The judge declined to designate the internship as approved training and concluded that Murphy was "not available for work or actively seeking work because she is not willing to accept or seek work to which she is suited by training and experience in office administration."

Murphy appealed the reemployment judge's decision to the commissioner's representative. Murphy argued that even if her training was not approved, she had been seeking work in chemical dependency counseling prior to October 6 and only took the internship after failing to obtain such work. The department then issued a notice of overpayment for the benefits that Murphy had received in September 1997. Another reemployment insurance judge had affirmed the overpayment contingent on the outcome of the preceding appeal.

The commissioner's representative affirmed the eligibility decision, determining that Murphy was physically capable of performing office work and that her prospects for finding such work locally were good. The commissioner's representative also rejected Murphy's argument that she was eligible for benefits during the period before October 6, concluding that Murphy had not been actively seeking work as an administrative assistant during that period. The commissioner's representative also affirmed the overpayment decision.

Murphy appeals by writ of certiorari from both the eligibility and overpayment decision. In her letter brief, she states that she completed her second internship and has obtained full-time work as a chemical dependency counselor.

D E C I S I O N

A decision by the commissioner's representative on whether a claimant for reemployment insurance is eligible for benefits will be upheld if it is "reasonably supported by the evidence." Honeywell, Inc., v. Hoyhtya, 400 N.W.2d 818, 821 (Minn. App. 1987). Similarly, factual findings will be upheld if the evidence, when viewed in the light most favorable to the decision, reasonably tends to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). But as in other matters, no deference is given to the commissioner's representative on questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

A claimant is eligible for reemployment benefits only during periods in which she "was able to work and was available for employment, and was actively seeking employment." Minn. Stat.  268.08, subd. 1(2) (Supp. 1997). The question of a claimant's eligibility under this standard depends on the particular facts of each individual case. Honeywell, 400 N.W.2d at 821. The claimant has the burden of demonstrating her ability to work, but there is no presumption of inability. Minn. R. 3305.0400, subp. 1 (1997). A claimant is "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.

Minn. R. 3305.0500, subp. 1 (1997). A claimant is "actively seeking" work if she makes

reasonable, diligent efforts to actively seek suitable work * * * . 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.

Minn. R. 3305.0600, subp. 1 (1997).

A claimant will be allowed to limit the work search to work in a usual or customary trade or occupation if he or she has favorable prospects of returning to work in that usual trade or occupation within a reasonable time * * * . The length of time allowed to a claimant to limit the work search to work in a usual trade or occupation will be governed by the availability of that work in the labor market area where the claimant is seeking work.

Id., subp. 4.

The reemployment insurance statutes are remedial in nature and are construed liberally to carry out the legislature's announced policy of benefiting those "who are unemployed through no fault of their own and who are genuinely attached to the labor market." Decker v. City Pages, Inc., 540 N.W.2d 544, 548 (Minn. App. 1995) (quoting Olson v. Starkey, 259 Minn. 364, 371, 107 N.W.2d 386, 391 (1961)). Recent decisions have emphasized the remedial purpose of the reemployment statutes in reversing denials of benefits to claimants who were obviously genuinely attached to the labor market although technical arguments existed for their disqualification. See, e.g., Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 605-06 (Minn. 1994) (overruling prior cases to reverse disqualification of claimant terminated for failure to accept shift change who made good faith but unsuccessful effort to obtain child care on short notice); Decker, 540 N.W.2d at 550 (reversing determination of overpayment where claimant pursued "creative" effort to start own business while also following traditional approach to seeking employment).

I. Eligibility Before Beginning Internship

The commissioner's representative initially determined that Murphy was not eligible for benefits during her internship and reasoned that she therefore must have been overpaid when she received benefits before beginning the internship. But there is nothing in the record to contradict Murphy's statements that during the three weeks before beginning her internship, she actively sought work as a chemical dependency counselor and also checked job listings for administrative assistants, but did not apply for any jobs in the latter category because they all required extensive computer work. We conclude that the commissioner's representative erred in determining that Murphy under these circumstances was not available for and actively seeking work within the meaning of the applicable rules.

It has long been established that, at least as an initial matter and in the absence of contrary instructions from the department, a claimant for benefits is entitled to concentrate her employment search on those jobs that best match her qualifications. In determining whether any available work is "suitable," the commissioner's representative must "first consider the prospects of the applicant's obtaining local work in his customary occupation." Berthiaume v. Christgau, 218 Minn. 65, 70, 15 N.W.2d 115, 118 (1944); see also Decker, 540 N.W.2d at 550 (reversing finding of insufficient work search where claimant limited search to publishing and advertising director positions and failed to apply for position with former employer inferior to his previous job there); Honeywell, 400 N.W.2d at 821 (upholding finding of sufficient work search where claimant limited work search to field in which she had received her bachelor's degree). This rule also applies where a claimant had recently trained for a new career. See Hendrickson, 295 N.W.2d at 387 (reversing denial of benefits to claimant who had completed all but one semester of registered nurse training and concentrated work search on jobs in medical field or with children). A claimant's self-imposed restrictions on her work search do not bar eligibility "if there are favorable prospects for obtaining full-time work within the restrictions within a reasonable period of time." Minn. R. 3305.0500, subp. 1.

The law does not require a claimant to apply for every job that she is physically capable of performing in order to qualify for benefits. Moreover, a claimant need not subject herself to injury or illness in connection with her employment in order to remain qualified for benefits. Fannon v. Federal Cartridge Corp., 219 Minn. 306, 311-12, 18 N.W.2d 249, 252 (1945). This principle is reflected in the administrative rule that work is not suitable for a claimant if it "presents a risk to health or physical condition that is not usually customary to that occupation." Minn. R. 3305.0800, subp. 7 (1997).

Even accepting the implicit conclusion of the commissioner's representative that employment as an office assistant was "suitable" for Murphy despite the fact that it caused her pain, we conclude that Murphy was "genuinely attached to the labor market" during the period before her internship. See Decker, 540 N.W.2d at 548. Although she was not certified, Murphy had experience as a chemical dependency counselor; she did not attempt to change careers upon her unemployment instead of seeking jobs in her single field of expertise. Cf. Monson v. Minnesota Dep't of Employment Servs., 262 N.W.2d 171, 172 (Minn. 1978) (affirming denial of benefits where former research library director, after applying for only two or three library positions, enrolled in auto mechanics training course). There is no evidence contradicting Murphy's testimony that the department gave her no instructions as to the scope of her job search. Cf. James v. Commissioner of Econ. Sec., 354 N.W.2d 840, 844 (Minn. App. 1984) (affirming denial of benefits based on claimant's failure to follow department's job search instructions). The commissioner's representative made no finding that Murphy did not have favorable prospects for finding employment as a chemical dependency counselor, and although Murphy's testimony indicates that local employers in the chemical dependency field do in fact require certification, she only learned this fact through three weeks of job search. In view of Murphy's fibromyalgia and its attendant physical complications, we conclude that her decision to concentrate her job search on chemical dependency counseling positions during her first three weeks of unemployment was not an unjustified restriction on her availability for work. In the absence of contrary instructions, a reasonable person in Murphy's position genuinely interested in obtaining suitable employment might have taken the same course of action. See Minn. R. 3305.0600, subp. 1. We conclude that Murphy was eligible for benefits during the period before her internship and we therefore reverse the department's assessment of an overpayment.

II.Internship as Approved Training

Under the reemployment statutes, a claimant is not eligible for benefits during a period in which she is a full-time student unless (1) her training is approved by the commissioner or (2) she was a full-time student during the most recent year of her employment. Minn. Stat.  268.08, subds. 1(2), 2(2) (Supp. 1997). Courts have created a third exception where a student continues to seek work and is willing to quit school if offered suitable employment that would conflict with her education. See, e.g., Goodman v. Minnesota Dep't of Employment Servs., 312 Minn. 551, 552, 255 N.W.2d 222, 223 (1977). Murphy testified that she was not willing to quit her internship and there is no dispute that her only educational work in the year preceding August 1997 was part-time. Therefore, only if her internship was approved training would Murphy be eligible for benefits after October 6, 1997.

A training course will be approved only if the commissioner finds that "reasonable and suitable work opportunities for which the individual is fitted by training, experience, and physical capabilities do not exist in the individual's locality." Minn. R. 3310.5800, subp. 2(A) (1997).

Here, the reemployment insurance judge and the commissioner's representative made findings that suitable office assistant work was available. But the only evidence in the record addressing the issue is the adjudicator's finding; the evidence on which the adjudicator relied is not contained in the record.

Agency action must be based on objective criteria applied to the facts and circumstances of the record at hand. * * * The agency must explain on what evidence it is relying and how that evidence connects rationally with its choice of action.

Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn. App. 1998) (emphasis added; citations and internal quotations omitted). In a certiorari case, the government body has the burden of providing a record sufficient to allow meaningful appellate review of the evidence in support of its decision. See Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 676 (Minn. 1990). The error in failing to include this evidence might be harmless if the only issue was the availability of administrative assistant jobs. Here, however, the relevant figure is the number of available administrative assistant jobs that would be compatible with the limitations imposed by her fibromyalgia. Although our standard of review is deferential and we afford due regard to agency expertise, due process prohibits us from affirming a factual finding based on an entirely silent record where the underlying facts are not of such common knowledge that we may take judicial notice of them. See Carter, 574 N.W.2d at 730 (stating that administrative law ultimately derives from due-process standards); State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985) (stating that judicial notice is appropriate for facts of common knowledge not in dispute or for which neither expertise nor foundation is needed).

Moreover, we believe that the record evidence of Murphy's medical condition is insufficient to accurately determine the scope of her limitations. The reemployment insurance judge interpreted Murphy's physician's statement to say Murphy could perform computer data entry work or sit at a computer terminal for more than one hour if she took short breaks to move and stretch. Murphy, however, interprets the same statement to say that she cannot perform such work at all and must move and stretch each hour in order to perform other types of office work. The commissioner's representative correctly reads the statement saying that Murphy can perform office work "with certain restrictions." It is not possible from the evidence in the record, however, to ascertain those restrictions.

We remand the training issue with instructions that the department order Murphy to procure, within a reasonable time, clarification from her physician as to the extent her ability to perform office administration work is limited by her fibromyalgia. The physician should specify whether there are any office tasks, including computer work or prolonged sitting, that Murphy is physically unable to perform at all; which types of tasks she can perform but will require her to take hourly breaks to move and stretch, and the length of those breaks; whether there are any tasks that she can perform only for a limited time period even with such breaks; which types of tasks are particularly painful for Murphy; and whether any types of office tasks present particular risks of aggravating her condition. Because Murphy's condition fluctuates in severity, the physician's statement or testimony should indicate Murphy's capacity in both her better and worse periods. Information on how frequently Murphy missed work at Interfaith because of her condition would also be an instructive addition to this record.

On remand, the commissioner's representative should accurately determine whether any of the administrative assistant jobs available at the time of Murphy's internship were suitable for her. Employment is not suitable if it carries "a risk to health or physical condition which is not usually customary to that occupation."1 Minn. R. 3305.0700, subp. 7. In this context,, the commissioner's representative may determine whether Murphy was eligible to invoke the approved training exception. The record below should include any evidence on which the commissioner's representative relies so that a meaningful review of the decision is possible in the event of a second appeal.

Reversed and remanded.

1. The definition of suitability is not consistent through time. "As a claimant's duration of employment lengthens, * * * work that is unsuitable at one point may become suitable at another point." Minn. R. 3305.0500, subp. 9 (1997). For purposes of approved training, the inquiry should be whether the employment would be suitable after sufficient time for Murphy to perform a "thorough and adequate work search." See Pyeatt v. Department of Employment Servs., 263 N.W.2d 394, 395 (Minn. 1978).