This opinion will be unpublished and

may not be cited except as provided by

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







John Eric Ostrom,





Outdoor Services, Inc.,



Department of Employment and

Economic Development,




Filed August 15, 2006

Klaphake, Judge


Department of Employment and Economic Development

File No. 6824 05


John Eric Ostrom, Route 1, Box 99B, Fountain, MN 55935 (pro se relator)


Outdoor Services Inc., 1725 First Avenue Southeast, Rochester, MN 55904 (respondent)


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


            Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator John Ostrom challenges the decision of the senior unemployment review judge (review judge) that relator is ineligible for unemployment benefits.  Because the review judge’s decision is supported by the evidence and not contrary to the statutory mandate, we affirm.


            This court must review the findings in the light “most favorable to the decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).   We exercise independent judgment on issues of law.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Relator raises two main issues in this appeal:  (1) the review judge improperly found that he was not actively seeking suitable employment; and (2) the unemployment law judge (ULJ) erred by declining to allow him to offer post-hearing evidence and in failing to question him about the extent of his job search.

            From January 2 to April 23, 2005, the period in question here, relator testified that he had applied for suitable employment but was unable to secure a job.  Relator testified that he accepted an offer of a landscaping job that would start during the second week in May because he could do this job when he was not working on his own business.  He further testified that he had started a landscaping and lawn care business with his wife, but his own work did not begin until April, and he did not perform more than 32 hours of work per week until April 27.  His former employer testified, however, that it was losing customers to relator as early as February and receiving calls from customers to switch to relator’s business as early as February 23. 

            An applicant must meet five requirements to receive unemployment benefits.  Minn. Stat. § 268.069, subd. 1 (2004).  One of the requirements is that he meet all ongoing weekly eligibility requirements in sections 268.085 and 268.086, which includes that he “actively seek[] suitable employment,” which is defined as “reasonable, diligent efforts . . . in obtaining suitable employment under the existing conditions in the labor market area.”  Minn. Stat. § 268.085, subd. 16(a) (2004).  On this record, we defer to the review judge’s finding that relator was not actively seeking employment.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (appellate court defers to review judge’s ability to judge witness credibility and conflicting evidence). 

            Relator also challenges the findings and evidentiary rulings of the ULJ.  First, relator requests that this court correct the ULJ’s findings.   This court reviews the review judge’s findings, however, not those of the ULJ.  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 123 (Minn. App. 1985).  

            Second, relator requests that we consider his job search results contained in an attachment to his informal brief.  Relator submitted similar evidence in a written submission to the review judge, but the review judge may consider only the evidence offered at the unemployment hearing.  Minn. Stat. § 268.105, subd. 2.  The review judge did not remand the matter to the ULJ for additional evidence, and instead conducted a de novo review because the facts were in dispute.  See id. subd. 2(c), (d).  This court’s review is similarly limited to the record considered by the review judge.  Minn. R. Civ. App. P. 115.04. 

            Third, relator argues he “was not allowed to enter into evidence the extent of the job search” because the ULJ failed to ask details about his job search.  At the hearing, the ULJ asked relator whether he had been “available for suitable employment and actively seeking suitable employment.”  When relator simply answered, “Yes, Your Honor,” the ULJ further inquired, “What type of work were you looking for?”  Relator responded generally about the types of jobs he had applied for.  The transcript reveals that the ULJ asked appropriate questions to ensure that all relevant facts were “clearly and fully developed.”  Minn. Stat. § 268.105, subd. 1(b).  That after the hearing relator wanted to further elaborate on his responses is not a basis for overturning the review judge’s decision.