Dennis R. Savick, Relator, vs. Department of Employment and Economic Development, Respondent.

Dennis R. Savick, Relator, vs. Department of Employment and Economic Development, Respondent. A05-2555, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2555

 

Dennis R. Savick,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

Filed October 3, 2006

Affirmed

Randall, Judge

 

Department of Employment and Economic Development

File No. 1047205

 

 

Philip J. Elbert, Skillings & Associates, 237 Belgrade Ave., P.O. Box 2064, North Mankato, MN  56002 (for relator)

 

Linda Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On certiorari appeal from the decision of the unemployment law judge (ULJ) affirming her earlier decision that relator was ineligible to receive unemployment benefits, relator argues that (a) because he denied that he was disabled and the department provided no additional evidence that he was disabled, relator should not be required to prove that he was disabled; and (b) he had no notice that the issue of whether he had made an adequate job search would be raised at the hearing and it should not have been at issue.  We affirm.

FACTS

            Relator Dennis Savick was employed by Smiland Paint Company from some time in 2002 until January 5, 2004.  Due to worsening pain in his back and leg, he underwent a microdiskectomy on February 16, 2004, in which several displaced fragments were removed from his back.  Savick had a normal recovery and was doing well through April and May 2004.  But sometime in May or June, he had a serious occurrence of depression that lasted until September 2004.  Savick applied for and received unemployment benefits from January 10, 2004, to July 10, 2004.

            Savick also claimed workers' compensation benefits for temporary total disability for the period from January 5, 2004, to June 20, 2004, and from September 29, 2004, to January 10, 2005.  He further claimed temporary partial disability benefits beginning on January 10, 2005.  A hearing was held before a workers' compensation judge (WCJ) on April 6, 2005, where the WJC found that Savick was completely disabled from February 16 to March 16, 2004.  The WCJ, however, rejected Savick's claim in its entirety because of a lack of evidence linking Savick's back pain to a work-related injury.

            On June 24, 2005, after his unsuccessful disability claim, the Minnesota Department of Employment and Economic Development (DEED) informed Savick that because applicants who are unable to work are ineligible for unemployment assistance, he had been ineligible for unemployment benefits from February 16 to July 10, 2004.  DEED also informed Savick that he must repay $5,096 of the unemployment assistance he had received during that period.  Savick appealed.  The hearing of his appeal was first scheduled to be held on August 18, 2005.  He twice requested that his hearing be rescheduled, and at least once specifically indicated that he needed the additional time to gather medical documentation related to the treatment of his back pain and depression.  The hearing was held on October 10, 2005.  During the hearing, Savick refused, without explanation, to provide any of his medical information.  Because he failed to persuade the unemployment law judge (ULJ) that he had been able to work and had been actively seeking work while he was receiving unemployment benefits, as required by statute, the ULJ found that Savick had been ineligible for unemployment benefits between February 16, 2004, and July 10, 2004. 

            On October 28, 2005, Savick filed an appeal for reconsideration of the ULJ's decision.  The decision was affirmed.  This certiorari appeal followed.

D E C I S I O N

            This court reviews the ULJ's decision to determine if the substantial rights of the relator have been prejudiced.  Minn. Stat. § 268.105, subd. 7 (Supp. 2005).  We will reverse or modify the ULJ's decision if the ULJ's findings, inferences, conclusion, or decision are erroneous under the law or are unsupported by substantial evidence in view of the entire record.  Id.

I.

            In Minnesota "[a]n applicant shall be eligible to receive unemployment benefits for any week if: . . . The applicant was able to work and was available for suitable employment, and was actively seeking suitable employment."  Minn. Stat. § 268.085, subd. 1(2) (2004).  "‘Able to work' means 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."  Minn. Stat. § 268.085, subd. 14 (2004).     

Before the ULJ, Savick asserted that he was able to work during the period in question.  Savick argues that his assertion alone required DEED to prove that he was not able to work, and that he should not have been required to prove that he was able to work.  He argues that requiring him to provide evidencenamely, some medical documentationsupporting his assertion imposed a common-law burden of proof in violation of Minn. Stat. § 268.105, subd. 1(b) (Supp. 2005) ("The evidentiary hearing shall be conducted . . . without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding.").

            On appeal before a ULJ, neither party bears the burden of proof.  See Minn. Stat. § 268.069, subd. 2 (2004).  But all issues of fact "shall be determined by a preponderance of the evidence."  Minn. Stat. § 268.03, subd. 2 (2004).  Here, the ULJ did not impose a burden of proof on either Savick or DEED.  Merely requiring Savick to present some evidence supporting his appeal was not the equivalent of imposing a burden of proof.  A recipient of unemployment benefits has a duty to provide information establishing his eligibility for benefits.  See Minn. Stat. § 268.085, subd. 2(4) (2004) (stating that an applicant shall not be eligible to receive unemployment benefits for any week that the applicant fails or refuses to provide information on an issue of eligibility).  Savick could not reasonably expect to win his appeal without presenting any evidence.

            Also, a ULJ, when weighing the evidence, may consider a party's credibility.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (stating that this court defers to the decision-maker's credibility determinations); see also Minn. Stat. § 268.105, subd. 1(c) (Supp. 2005) (stating that when the credibility of a witness has a significant effect on the outcome, the ULJ must give reason for crediting or discrediting the testimony).  At the beginning of Savick's hearing, the ULJ told Savick that "if you refuse to answer a question or if you avoid answering a question I may come to the conclusion that you are doing so because you believe your answer would hurt you and I am free to draw an adverse inference from that."  When Savick refused to produce his medical information, without explaining why, after having delayed his hearing twice previously so that he could gather that information, the ULJ could reasonably infer that Savick's medical information would have contradicted his assertion that he was able to work.

            Savick contends that because DEED provided no evidence that he was unable to work, the ULJ was required to accept as true Savick's bare assertion that he was unable to work.  We disagree.  Although no representative of DEED testified at Savick's hearing, DEED did present evidence.  DEED presented the WCJ's finding that Savick was completely disabled for a month after his back surgery, and Savick's own claim for temporary complete disability.  This evidence, when weighed against Savick's unsupported assertion that he was able to work, provided a sufficient basis for the ULJ's decision. 

II.

            Savick argues that the ULJ erred in finding that he did not do a proper job search.  In support of his claim, Savick argues that he did not have notice that the diligence of his job search would be raised as an issue during the hearing, and, therefore, he was unable to prepare documentation of his job search efforts in advance.  Savick argues that he had no notice because "[t]here was never a determination by [DEED] that [he] was ineligible for Unemployment benefits due to lack of compliance with any job search requirement." 

            The record reflects that the WCJ who rejected Savick's claim for disability benefits raised the issue of Savick's job search and found that "there are no records to support [Savick's claim that he performed a diligent job search during his claimed period of disability] and his testimony was not persuasive in this regard.  The record reflects some lack of cooperation with . . . job search efforts."  The record also reflects that each time Savick postponed his hearing before the ULJ, a new notice was sent to him.  The first notice described the issue to be considered as "[i]s the applicant overpaid [unemployment benefits], either through error or misrepresentation, and if so, in what amount?"  The second notice described the issue more generally, as "[d]oes the applicant meet the statutory requirements to be eligible for benefits?"[1]  Conducting a diligent job search is one of the duties a recipient of unemployment benefits must perform to maintain his eligibility.  See Minn. Stat. § 268.085, subd. 1(4) (2004).  We find Savick had adequate notice that the diligence of his job search would be raised as an issue during the hearing before the ULJ. 

Finally, Savick argues that the ULJ's decision that he had not performed a diligent job search during the period in question was not reasonably supported by the evidence.  Savick contends that it was unreasonable to require him to recall the details of job search activities that occurred more than one and one-half years before the hearing.  We disagree.  Savick was not required to remember, off-hand, details of his job-search efforts, but to keep careful records of his efforts at the time.  The ULJ noted at Savick's hearing that a handbook, distributed to recipients of unemployment benefits, instructs them to keep records of their job-search efforts, and warns them that they may be required to produce details of their job-search efforts.  As noted above, Savick had a duty to provide that information.  Savick's failure to keep records, and the WCJ's finding that his job search efforts had been lacking, support the ULJ's finding that Savick did not perform the requisite job search. 

            Affirmed.

[1] Savick suggests that he did not receive this notice.  However, a copy of the second notice is attached to his brief.