This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2115

 

Sia Yang,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

Filed September 5, 2006

Reversed

Shumaker, Judge

 

Department of Employment and Economic Development

File Nos. 1816904, 1817004

 

Peter B. Knapp, Elizabeth Magnuson (certified student attorney), William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St Paul, MN 5501-135 (for respondent)

 

            Considered and decided by Ross, Presiding Judge, Shumaker, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Relator challenges the decision that he was unable to work and, therefore, ineligible for unemployment benefits.  Because the record shows that relator was unable to work only in the health-care industry but not other industries, we reverse.

FACTS

Relator Sia Yang was laid off from his employment as a personal-care attendant for a disabled child in July 2004.  Yang established a benefits account with the Department of Employment and Economic Development in August 2004 and was awarded a weekly benefit of $350.  Yang suffers from high blood pressure, and during the period that Yang received benefits his nurse adjusted his medication.  The nurse instructed him that between October 15, 2004, and November 9, 2004, Yang should be “evaluated and get [his] blood pressure under control before looking for employment.”  Yang, however, asserted that he ignored his nurse’s advice not to look for employment.  The record shows that Yang, who also had work experience as a welder, bus driver, and machine operator, actively sought employment in fields other than health care shortly after he was laid off and between October 15, 2004, and November 9, 2004.  As of November 9, 2004, the nurse diagnosed Yang as “[a]ble to work with restrictions,” which included taking medication, checking his blood pressure daily, and attending medical appointments.

The Department was notified that Yang was unable to work for a period during which he received benefits, and it sent a medical/work-search letter to him in November 2004.  The letter was not returned.  Based on the information received by the Department, an adjudicator determined that Yang was ineligible to receive benefits until his health conditions changed.  The Department notified Yang that his benefits were suspended, and he appealed that decision.

An unemployment-law judge (ULJ) determined that Yang was unable to work between October 15, 2004, and November 9, 2004, and concluded that he was ineligible for benefits during that period.  Based on the nurse’s report, however, the ULJ determined that as of November 9, 2004, Yang was able to work and, therefore, re-established his eligibility for benefits.  The ULJ also required Yang to repay $1,260 in benefits.

            Yang then appealed to a senior-unemployment-review judge (SURJ).  The SURJ determined that because Yang was unable to work between October 15, 2004, and November 9, 2004, he was ineligible for benefits and required to repay $1,260.  Yang seeks review of the SURJ’s decision by writ of certiorari.

D E C I S I O N

Yang challenges the SURJ’s finding that he was unable to work for a period during which he received unemployment benefits.  This court reviews the findings of the SURJ, and its decisions are accorded “particular deference.”  See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ’s factual findings are viewed in the light most favorable to the decision and will not be disturbed if the evidence “reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee is disqualified from receiving unemployment benefits, however, is a question of law subject to de novo review.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An applicant may receive unemployment benefits for any week during which he is “able to work and [is] available for suitable employment, and [is] actively seeking suitable employment.”  Minn. Stat. § 268.085, subd. 1 (2004).  “Able to work” means that an applicant has “the physical and mental ability to perform (1) the usual duties of the applicant’s usual occupation or (2) the usual duties of work that is gainful employment engaged in by others as a means of livelihood.”  Id., subd. 14 (2004).  To be “available for suitable employment,” an applicant must be “ready and willing to accept suitable employment.”  Id., subd. 15(a) (2004). 

The SURJ found that the nurse advised Yang that he was “not to work” between October 15, 2004, and November 9, 2004.  Discounting Yang’s argument that he ignored his nurse’s advice, the SURJ stated that the “average reasonable worker would not go against the advice of their medical provider and seek out work, or perform work, after being informed . . . that doing so could jeopardize their health.”  Because the nurse “did not believe Yang had the physical ability to perform the usual duties of his usual occupation or other work that is gainful employment engaged in by others,” the SURJ concluded that Yang was unable to work during the period.  (Emphasis added.)

Yang argues that while his nurse recommended that he not work in his usual occupation, nothing in the record supports a finding that he was unable to work in other occupations.  We agree.  First, “able to work” refers not only to the ability to perform the usual duties of one’s usual occupation, but also to the usual duties of gainful employment engaged in by others.  Id., subd. 14.  Yang’s nurse concluded that Yang’s health condition caused Yang to be unable to perform his “usual occupation.”  Instead, the record does not support the finding that Yang was also unable to work in another field that is considered gainful employment for the purposes of unemployment benefits.  The record shows that Yang had work experience as a welder, bus driver, and machine operator, and that he actively sought employment in fields other than health care shortly after he was laid off and between October 15, 2004, and November 9, 2004.  Nothing in the nurse’s report shows that Yang was physically incapable of accepting and performing a non-health-care job during this period.  The nurse’s medical opinion was limited to Yang’s “usual occupation” of providing health care, and the SURJ’s broader inference that the nurse’s opinion applied to all fields is not supported by the record.  Therefore, we reverse the SURJ’s decision that Yang was ineligible for unemployment benefits and required to repay a portion of the benefits that he received.

            Our decision is narrow, given the unique facts of this case.  It is not meant to entitle disqualified persons to benefits simply by claiming the ability to work in other fields.  Here, the record shows only that a medical professional felt that Yang was unable to work in one specific industry.  Additionally, nothing in the record supports a determination that Yang was unable to work in other occupations because of his high blood pressure or, had he received an offer, that his health condition would have precluded his ability to perform the job.   Had the nurse not limited her opinion to Yang’s “usual occupation” or had the record revealed that Yang was physically unable to perform work in other occupations that are considered gainful employment, our opinion would likely differ. 

            Reversed.