This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Michael G. Swanson,





Trinity Universal Insurance,



Commissioner of Economic Security,



Filed April 16, 2002


Harten, Judge


Department of Economic Security

Agency File No. 3499


Lynn M. Starkovich, Daniel J. Ballintine, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for relator)


Jeffrey B. Oberman, Kristin L. Boetticher, Oppenheimer, Wolff & Donnelly, Plaza VII, 45 South Seventh Street, Suite 3400, Minneapolis, MN 55402-1609 (for respondent Trinity Universal Insurance)


Philip B. Byrne, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




Relator challenges the commissioner’s representative’s determination that his disqualification from unemployment benefits began when he was discharged.  Because we conclude that the determination was based on a correct application of the relevant law, we affirm.


            After relator Michael Swanson, an attorney, was discharged by his employer, respondent Trinity Universal Insurance (Trinity), he applied for reemployment insurance benefits.  Trinity received notification that relator had applied for benefits, but a temporary employee failed to process the notification properly and Trinity did not respond to it.  The Department of Economic Security (DES) decided that relator was not disqualified for benefits and again notified Trinity.

            Trinity appealed this decision on the ground that relator had been discharged for misconduct.  After a hearing, a reemployment compensation judge held that relator was disqualified from receiving benefits.  Relator appealed, and the commissioner’s representative affirmed.  Relator then sought certiorari review in this court. 

In an earlier appeal, Swanson v. Trinity Universal Ins., No. C0-00-83 (Minn. App. 1 Aug. 2000), review denied (Minn. 27 Sept. 2000), we affirmed relator’s disqualification but remanded for appropriate findings on whether and how the untimeliness of Trinity’s protest affected the date of relator’s disqualification.  On remand, the commissioner’s representative concluded that, because relator was discharged on 4 May 1999 for misconduct pursuant to Minn. Stat. § 268.095, subd. 4 (1998),[1] he was disqualified from receiving benefits as of Sunday 2 May 1999 pursuant to Minn. Stat. § 268.095, subd. 10(b) (1998) (providing that disqualification imposed under subdivision 4 begins on the Sunday of the week the claimant became separated from employment). 

 Relator again seeks certiorari review, contending that Trinity’s appeal of the DES determination that relator was not disqualified was in fact an untimely protest of relator’s application for benefits that postponed the date of relator’s disqualification, deprived both the commissioner and this court of subject matter jurisdiction, and equitably estopped the commissioner from concluding that relator was disqualified as of 2 May 1999.



            While this court defers to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record, we exercise our independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp. Inc., 448 N.W.2d 519, 523 (Minn. 1989).  All three issues here involve questions of law.

1.         Date of Relator’s Disqualification

Relator argues that Trinity’s timely appeal of the DES determination of relator’s nondisqualification was actually an untimely protest of relator’s application for benefits and that, pursuant to Minn. Stat. § 268.101, subd. 2(c) (1998), relator’s disqualification did not begin until “the Sunday two weeks following the week that the untimely protest was made” (4 July 1999). 

But the relevant statutes make clear both the distinction between a protest and an appeal and the sequence in which they occur.  First, a claimant files an application for benefits.  See Minn. Stat. § 268.07, subd 1.  Second, the claimant’s employer is notified of the application.  See Minn. Stat. § 268.101, subd. 1(b).  Third, the employer has ten days to timely protest the application; a protest made after more than ten days is untimely.  See Minn. Stat. § 268.101, subd. 1(b).  Fourth, the commissioner promptly determines issues of disqualification raised by any of three sources: an employer’s timely protest, information provided by the claimant, or an employer’s untimely protest.  See Minn. Stat. § 268.101, subd. 2(a), (b) and (c) respectively.  Fifth, the commissioner notifies the claimant and the employer of the determination of disqualification or nondisqualification, as is appropriate.  See Minn. Stat. § 268.101, subd. 2(a), (b) and (c).  Sixth, and finally, the claimant and the employer have 30 days to appeal the determination, which otherwise becomes final.  See Minn. Stat. § 268.101, subd. 2(e).

Applying the statutes here, we see the same sequence.  First, on 8 May 1999, relator filed his application.  Second, on 12 May 1999, Trinity was notified of relator’s application.  Third, Trinity did not timely or untimely protest relator’s application. Fourth, on 3 June 1999, because Trinity did not protest, the commissioner determined relator’s nondisqualification from the information relator provided.  Fifth, on 3 June 1999, the commissioner notified relator and Trinity of relator’s nondisqualification.  Sixth, on 24 June 1999, Trinity filed a timely appeal of relator’s nondisqualification.

Within the meaning of the statutes, Trinity filed a timely appeal, not an untimely protest, on 24 June 1999, and relator cannot invoke Minn. Stat. § 268.101, subd. 2(c).  Thus, his disqualification began on 2 May 1999. 

2.         Subject Matter Jurisdiction

            Relator contends that the DES’s failure to make the prompt determination mandated by Minn. Stat. § 268.101, subd. 2, deprived it, and subsequently this court, of jurisdiction.  However, the statute does not define prompt, and relator offers nothing except his own opinion to support the view that the DES determination was not prompt.  His argument on lack of subject matter jurisdiction is unpersuasive.

3.         Equitable Estoppel

            For an equitable estoppel claim to lie, the claimant must demonstrate that the other party induced the claimant’s good-faith reliance on that party’s language or conduct to the claimant’s injury or detriment.  See State v. Ramirez, 597 N.W.2d 575, 577 (Minn. App. 1999).  None of the three grounds relator advances for estoppel meets these criteria.  

Relator argues first that Trinity’s failure to protest his application led him to believe that Trinity would not appeal a determination of his nondisqualification and therefore Trinity should be equitably estopped from appealing.  This argument has no statutory basis.  Moreover, every time the parties are notified of a determination of disqualification or nondisqualification made by the DES, by an unemployment insurance judge, or by the commissioner’s representative, they are also notified of their unconditional right to appeal.  Relator could not reasonably have relied on Trinity’s purported inability to challenge his nondisqualification.  And even if relator did so rely, there is no evidence that any Trinity or DES conduct or communication led him to that reliance.

Second, relator argues that he was led to believe he could keep the benefits he was paid.  But the notice of nondisqualification from benefits advised relator that:

If benefits are paid to you based upon this determination and through an appeal this determination is reversed, you may be required to repay benefits.


Consequently, even before relator actually received the benefits, he knew that he could be required to repay them.  

            Third, relator argues that Minn. Stat. § 268.101, subd. 2(c) led him to believe his disqualification did not start until Sunday two weeks following the week of 24 June 1999. Even if this were true, relator could not successfully assert equitable estoppel against either Trinity or DES: estoppel can be invoked only when the party to be estopped has made the representation.  See Ramirez, 597 N.W.2d at 577.  Trinity sent its appeal to the Appeals Office, addressed it to the Appeals Officer, and stated in the opening sentence, “[Trinity] hereby appeals the findings * * * with respect to its determination of nondisqualification.”  Relator could not have relied in good faith on this document being something other than an appeal from a determination of nondisqualification as described in Minn. Stat. § 268.105.

            We see no error in the commissioner’s representative’s determination that relator’s disqualification began on 2 May 1999.


[1] The 1998 statutes were in effect at the relevant time and therefore govern this case.  See Swanson, 2000 WL 1052170 * 3, n.2.