This opinion will be unpublished and

may not be cited except as provided by

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







Marie L. Joseph,





Department of Employment and Economic Development,




Filed January 10, 2006


Huspeni, Judge*



Department of Employment and Economic Development

File No. 1901904


Marie L. Joseph, 10473 Drake Street Northwest, Coon Rapids, MN 55433-7122 (pro se relator)


Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            On certiorari appeal from a decision by the senior employment review judge (SURJ), relator argues that the SURJ erred by deciding that (1) relator is not entitled to a second benefit account; (2) her unemployment benefits are subject to a deduction based on receipt of social security old-age benefits; and (3) she should not be paid on a benefit account established in 1997.  Because we see no error in the decisions of the SURJ, we affirm.


            Relator Marie L. Joseph established an unemployment benefits account on November 23, 2003.  She attempted to establish a second account on November 21, 2004, but respondent Department of Employment and Economic Development (department) determined that she was not eligible for any weekly benefits on the second account.  Subsequently, the department issued another determination, stating that based on relator’s receipt of monthly social security benefits of $565, her weekly unemployment benefits were subject to a deduction of $65.19.  Relator appealed both determinations.

The unemployment law judge (ULJ) held a telephone hearing on both appeals and affirmed the department’s determinations.  Regarding the account ineligibility determination, the ULJ found that after the effective date of relator’s November 2003 account, she had no earnings in covered employment.  Accordingly, the ULJ held that relator could not establish a second benefit account because she did not satisfy the statutory requirements of Minn. Stat. § 268.07 (2004).  The ULJ also noted that relator “attempted to incorporate into this appeal two or three other previous issues that she has had with unemployment insurance.”  But those issues could not be combined and the time for appeals on those issues had expired. 

Regarding the social security deduction determination, the ULJ found that relator was receiving social security old-age benefits of $565 per month, and that under Minn. Stat. § 268.085, subd. 4 (2004), 50% of the weekly equivalent of her social security benefits should be deducted from her weekly unemployment benefits.  Relator appealed both of the ULJ’s decisions to the SURJ. 

The SURJ declined to conduct de novo review on either issue and adopted the findings and decision of the ULJ as final findings under Minn. Stat. § 268.105, subd. 2a(a) (2004).  The SURJ also addressed relator’s argument that she was due unemployment benefits based on an account established in 1997.  In rejecting that argument, the SURJ explained that under Minn. Stat. § 268.21(b) (2004), a person may not recover on a benefit account after two years have passed since its effective date.  This certiorari appeal followed.  


Appellate courts review the findings of the senior unemployment review judge rather than those of the unemployment law judge.[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  While this court defers to the SURJ’s findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The ultimate determination of whether an employee is disqualified from receipt of unemployment benefits is a question of law that this court reviews de novo.  Id.   


Under Minnesota law, an applicant must meet specified requirements before unemployment benefits can be received.  Minn. Stat. § 268.069, subd. 1 (2004).  One such requirement is that “the applicant has filed an application for unemployment benefits and established a benefit account in accordance with section 268.07.”  Id.  To establish a benefit account, an applicant for unemployment benefits must have “(1) high quarter wage credits of at least $1,000; and (2) wage credits, in other than the high quarter, of at least $250.”  Minn. Stat. § 268.07, subd. 2 (2004). 

To establish a second benefit account following the expiration of a benefit year on a prior benefit account, an applicant must have sufficient wage credits to establish a benefit account under subdivision 2 and must have performed services in covered employment after the effective date of the prior benefit account.  The wages paid for that employment must equal not less than eight times the weekly unemployment benefit amount of the prior benefit account.  The purpose of this subdivision is to prevent an applicant from establishing more than one benefit account as a result of one loss of employment.


Id., subd. 3 (2004). 


            Here, relator was employed during the last quarter of 2003.  Her pay stubs indicate that the last pay check she received was for the period ending November 20, 2003.  She established her first benefits account on November 23, 2003, and has not been again employed since November 2003.  The record supports the ULJ’s finding that relator “had no covered employment after the effective date of her prior benefit account.”  Thus, under Minn. Stat. § 268.07, subd. 3, relator was not entitled to establish a second benefit account. 

Relator insists that the telephone hearing she conducted with the ULJ was unclear and interrupted by problems with the phone line.  But the hearing transcript indicates otherwise.  While there was some buzzing noise on the line at the beginning of the hearing, relator and the ULJ heard and responded to each other appropriately and were able to conduct the hearing to its conclusion.   


The unemployment benefits eligibility requirements include a setoff for social security benefits.  An unemployment benefits applicant over the age of 62 must state whether he or she is receiving or intends to file for social security old-age benefits.  Minn. Stat. § 268.085, subd. 4 (2004).  “There shall be deducted from an applicant’s weekly unemployment benefit amount 50 percent of the weekly equivalent of the primary Social Security old age benefit the applicant has received, has filed for, or intends to file for, with respect to that week.”  Id. 

It is undisputed that relator received $565 per month in social security old-age benefits.  Consequently, Minnesota statute clearly states that relator’s unemployment benefits are subject to a deduction based on the weekly equivalent of her old-age social security benefit.  The SURJ did not err by adopting the ULJ’s decision that the social security setoff was appropriate when determining the amount of unemployment benefits to which relator was entitled.   


Much of relator’s argument on appeal focuses on a prior unemployment benefits account established by her in July 1997.  In the SURJ’s memorandum, he explained that benefits under that account would have been payable only until July 1998.  That explanation was correct.  Under Minnesota law, “[n]o person shall make any demand, bring any suit, or other proceeding to recover from the state or the commissioner any sum alleged to be due on a benefit account after the expiration of two years from the effective date of the benefit account.”  Minn. Stat. § 268.21(b) (2004).  Thus, as the SURJ correctly explained, relator may no longer seek recovery from that account in 2005.


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

[1] The legislature substituted the term “senior unemployment review judge” for representative of the commissioner.  2004 Minn. Laws ch. 183, § 71, at 304-09.