This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1902

Kathleen J. Wagar,

Relator,

vs.

Patrick J. McLafferty/

McLafferty's Boys Home,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed April 14, 1998

Reversed and remanded

Harten, Judge

Department of Economic Security

File No. 2728-UC-97

Kathleen J. Wagar, P.O. Box 533, Anoka, MN 55303 (pro se relator)

Patrick J. McLafferty, 7321-154th Lane N.W., Ramsey, MN 55303 (respondent employer)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Relator Kathleen Wagar appeals the calculation of her wage credits for reemployment insurance benefits. We reverse and remand.

FACTS

Respondent Patrick McLafferty operates a foster home for boys. Wagar worked for McLafferty from approximately August 1, 1996, until February 11, 1997. Her compensation included $100 a week in cash, room and board, and use of a vehicle. Wagar filed a claim for benefits effective in February 1997. The Department of Economic Security determined that Wagar's base period for computation of her benefits was October 1, 1995 through September 30, 1996. It found that Wagar received $100 a week in wages from McLafferty. In addition, the Department estimated 75% of the weekly wage for room and 60% of the weekly wage for board. The total wages amounted to $3,055 for a 13-week quarter. The time between August 1, 1996, when Wagar began her work for McLafferty, and September 30, 1996, the end of the base period, is eight weeks and five days. The Department adjusted the $3,055 to reflect a period shorter than the 13-week quarter and concluded that Wagar had earned $2,036.66 in the third quarter of 1996. The Department also found that Wagar earned $720.40 from Frank's Nursery during the second quarter of 1996. The Department concluded that Wager's total wage credits during the base period were $2,757.06. Wagar appealed the findings to a reemployment insurance judge.

Wagar presented testimony about her employment with McLafferty. She included room and board in her wage calculation and valued her wages at $1,300 a month, figuring $400 per month in cash, $400 for room, $300 for board, and $200 for use of the car. The $300 for board included food, use of a health club, and other expenses. McLafferty did not appear at the hearing.

The reemployment insurance judge found that Wagar had earnings of $720.40 from Frank's Nursery, $2,600 from McLafferty during the second quarter of 1996, and $3,900 from McLafferty during the third quarter of 1996. The judge decided that Wagar met the requirements for a reemployment insurance account and had wage credits of $7,220. Wagar's weekly benefit amount was set at $150, with a maximum of $2,406.

McLafferty appealed that decision to the commissioner. The representative of the commissioner disagreed with the reemployment insurance judge and adopted the Department's initial determination. The commissioner found that Wagar had earnings of $720.40 from Frank's Nursery and $2,036.66 from McLafferty during the second quarter of 1996; thus, Wagar's total base period earnings were $2,757.06, not $7,220. The commissioner determined that her weekly benefit amount was $78 and the maximum amount was $919.

D E C I S I O N

We review the decision of the commissioner's representative, rather than the decision of the reemployment insurance judge. Weaver v. Minnesota Valley Lab. Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). In reviewing reemployment decisions, the standard of review is very narrow. Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992). We view the findings of fact in the light most favorable to the decision, and if there is evidence that reasonably tends to support the findings, we will not disturb them. Id. at 383-84.

Minnesota law provides:

If the commissioner finds that a claimant has sufficient wage credits and weeks worked within the base period to establish a reemployment insurance account, the weekly benefit amount payable to the claimant during the claimant's benefit year shall be equal to 1/26 of the claimant's high quarter wage credits, rounded to the next lower whole dollar.

Minn. Stat. § 268.07, subd. 2(b) (1996). The "base period" is the "first four of the last five completed calendar quarters immediately preceding the first day of a claimant's benefit year." Minn. Stat. § 268.04, subd. 2 (1996). "Wage credits" are "the amount of wages paid within the base period for insured work." Minn. Stat. § 268.04, subd. 26. A "calendar quarter" is a "period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31." Minn. Stat. § 268.04, subd. 5. "High quarter" means

the calendar quarter in an individual's base period for which the individual's total wage credits during that quarter are equal to or greater than the individual's total wage credits during any other calendar quarter in the individual's base period.

Minn. Stat. § 268.04, subd. 36.

The commissioner's representative found that Wagar earned wages from McLafferty during the second quarter of 1996. That finding is incorrect. The second quarter ends on June 30. Minn. Stat. § 268.04, subd. 5. Wagar did not begin her position with McLafferty until August 1996, which is in the third calendar quarter of the year.

We note that the decision of the reemployment insurance judge, which Wagar argues was correct, is also erroneous. The reemployment insurance judge found that Wagar earned $2,600 from McLafferty during the second quarter of 1996 and $3,900 from McLafferty in the third quarter, based on a monthly wage of $1,300. As we stated above, Wagar did not work for McLafferty during the second calendar quarter. Moreover, her base period extends only through September 30, 1996, and therefore, Wagar worked only two months in her base period, during the third quarter of 1996.

We also note that the order of the commissioner's representative does not explain his method of calculating wage credits or his decision to reject the findings of the reemployment insurance judge. Moreover, the commissioner did not submit a brief in this appeal. We reverse and remand for redetermination of Wagar's benefits utilizing Wagar's correct wage credits.

Reversed and remanded.