This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Lori L. Davis,





Commissioner of Employment and

Economic Development,




Filed June 14, 2005

Crippen, Judge


Department of Employment and

Economic Development

File No. 6699 04



Lori L. Davis, RR 3, Box 473, Bagley, MN  56621-9765 (pro se relator)


Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Lori Davis challenges a decision reached by a representative of the respondent Commissioner of Employment and Economic Development determining that she is ineligible to receive unemployment benefits.  Because the record reasonably supports the decision of the commissioner’s representative that relator, who quit her job as a general laborer because of her pregnancy, lacked the physical ability to perform the usual duties of her usual occupation or of comparable employment, and because she thus was unable to work and ineligible under current statutory standards, we affirm. 


            Relator worked as a general laborer for Sheehan Pipeline from August 17, 2003 until November 28, 2003.  Her duties involved heavy lifting of up to 50 pounds, as well as working outside and in dusty conditions.

            In November 2003, after relator learned that she was pregnant, she quit her job in order to find light-duty work.  Relator believed that she might be able to work at an office job or in a café, but she knew that her employer did not have that kind of work available.  She also knew that any job of that type would pay only about $6 per hour, compared to the $16.42 per hour that she made as a general laborer.  Relator testified that she asked her employer to lay her off, but that she was told by her employer that it was still hiring.

            Relator applied for and received unemployment benefits until February 6, 2004, when she received a disqualification notice that indicated she was ineligible because she was unable to work.  A few days later, she received a notice that she had been overpaid $2,296.

            Following a hearing, the unemployment law judge determined that relator was ineligible to receive benefits because she was not able to work.  On appeal, a representative of the commissioner similarly found that relator is “usually employed as a general laborer,” an occupation that “involve[s] strenuous physical activities, including heavy lifting,” and that “[f]rom November 28, 2003, and continuing until conditions change, [relator] has been unable to do strenuous physical work due to complications of pregnancy.”  The commissioner’s representative reasoned:

In order to be eligible to receive unemployment benefits, an applicant must be able to perform the usual duties of the applicant’s usual work, or comparable work.  Simply being able to perform any work at all is not sufficient.  [Relator] testified that she is unable to perform the usual duties of her usual work, and the light duty work she is seeking pays substantially less than her usual work, and is therefore not comparable work.


The commissioner’s representative concluded that relator is ineligible to receive unemployment benefits because she is not “able to work” under Minn. Stat. § 268.085, subds. 1(2) (Supp. 2003), 14 (2002).


            A decision by a commissioner’s representative concerning an applicant’s eligibility for benefits will be upheld if it is reasonably supported by the evidence.  Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91, 92 (Minn. App. 2001).  An applicant carries the burden of proving that he or she is eligible to receive benefits.  Id.

            Relator’s position is based, in part, on the policy that unemployment compensation is intended for those who are unemployed through no fault of their own.  See Minn. Stat. § 268.03, subd. 1 (2002) (setting out public purpose of unemployment statutes).  Relator clearly falls within this category of the unemployed.  But lack of fault does not entitle her to benefits under the pertinent laws as currently amended.  Other jurisdictions similarly recognize that unemployment compensation is not disability or health insurance and is not intended to provide benefits for people during periods in which they are unemployable or unable to work.  See White v. Employment Appeal Bd., 487 N.W.2d 342, 345 (Ia. 1992). 

            Minn. Stat. § 268.069, subd. 1(3) (Supp. 2003), provides that applicants must meet “all of the ongoing weekly eligibility requirements under sections 268.085 and 268.086” in order to receive unemployment benefits.  Those requirements provide, in part, that an applicant “was able to work and was available for suitable employment, and was actively seeking suitable employment.”  Minn. Stat. § 268.085, subd. 1(2) (Supp. 2003).

            An applicant is “able to work” if he or she has the physical and mental ability to perform the usual duties of the applicant’s usual occupation or of “comparableemployment.”[1]  Id., subd. 14 (2002).  While comparable employment is not defined, it commonly does not mean identical or equal, but merely similar in terms of job characteristics such as responsibilities, duties, hours, or pay.  See Polley v. Gopher Bearing Co., 478 N.W.2d 775, 778 (Minn. App. 1991) (Short, J., dissenting) (discussing the issue of comparability of employment under the Parenting Leave Act, Minn. Stat. §§ 181.940 - .944 (1990)), review denied (Minn. Jan. 30, 1992).

            The record shows that relator’s doctor advised her not to work and indicated on a medical statement that she was “[t]otally unable” to work from November 28, 2003 through September 1, 2004.  In a subsequent statement, her doctor stated that relator “may work with lifting restrictions [of less than] 25 [pounds] & light duty.”

            Relator argues that she quit her employment as a general laborer because of her medical condition and that she has continued to look for other, light-duty work; she therefore feels that she is able to work and is eligible to receive benefits.  But the legislated definition of “able to work” is more restrictive and requires an applicant to be able to perform her usual or comparable work.  Minn. Stat. § 268.085, subd. 14.  Relator’s testimony establishes that she quit because she lacked the physical ability to perform the usual duties of her job as a general laborer.  By her testimony, she also acknowledged that although she has the ability to perform light-duty work, such as in a café or office, those types of jobs would pay substantially less than she earned as a general laborer with Sheehan Pipeline.  Relator’s testimony thus supports the decision of the commissioner’s representative that she lacks the ability to work at her usual occupation or at a comparable job.

            We affirm the decision of the commissioner’s representative that relator is ineligible to receive unemployment benefits because she is not able to work.


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

[1] The term “comparable” was added in 2001; prior to that time, an applicant was “able to work” if he or she could perform “suitable” work.  See 2001 Minn. Laws ch. 175, § 34.  Because “suitable” suggests other employment that is reasonably related to an applicant’s qualifications, the pre-2001 definition might have included work for which an applicant was qualified and that was available, even if that work paid substantially less than an applicant’s usual occupation.