Allison P. Nordeen, Relator, vs. Spectators, Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-2225

 

 

Allison P. Nordeen,

Relator,

 

vs.

 

Spectators,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed September 2, 2003

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 9246 02

 

Peter B. Knapp, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105€‘3076 (for relator)

 

Spectators, KBFC Enterprises, Inc., 6415 Highway 10 N.W., Ramsey, MN 55303-4596 (respondent)

 

Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for commissioner)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Relator challenges the decision of the commissioner's representative disqualifying her from receiving unemployment benefits.  Because the commissioner's representative's decision that relator was not able to work is reasonably supported by the evidence in the record, we affirm.

FACTS

In late 2001, relator Allison Nordeen began working part-time as a bartender for KFBC Enterprises, Inc., d/b/a Spectators.  In April 2002, relator was hospitalized because she was experiencing debilitating headaches.  On April 21, 2002, when relator was about 19 weeks pregnant, a magnetic resonance imaging scan was performed.  Based on the examination and testing, her physician diagnosed relator with a venous sinus thrombosis (a blood clot in a blood vessel draining the brain).  Relator's physician prescribed medication to manage her pain and thin her blood.  Because relator was on the blood-thinning medication and because of her medical condition, her physician instructed her to avoid high contact activities in general and to stop working as a bartender until she gave birth in September 2002.  Relator's physician was concerned that relator might cut herself with a knife or on a broken piece of glass while bartending and that working in a smoke-filled environment and engaging in repetitive arm movements would exacerbate her medical condition.  On April 22 or 23, 2002, while relator was in the hospital, she called Spectators, told her manager about her diagnosis, and informed him that she would not be able to return to work.

            After relator returned home from the hospital, she began looking for a more sedentary job.  Because relator had past experience with bookkeeping, accounts payable/receivable, and typing, she started looking for a "desk job" performing bookkeeping or secretarial duties.  Relator prepared a resume and searched for jobs through the newspaper and the Internet, but was unable to obtain employment.

            On May 5, 2002, relator applied for unemployment benefits.  An adjudicator with the Minnesota Department of Employment and Economic Development denied relator's claim and, on appeal, an unemployment law judge also denied her claim.  Relator then appealed to a representative of the Commissioner of Employment and Economic Development who concluded, consistent with the unemployment law judge's determination, that relator was not entitled to benefits because she was not "able to work" pursuant to Minn. Stat. § 268.085, subds. 1(2), 14 (2002). 

D E C I S I O N

Relator argues that the commissioner's representative erred in denying her application for unemployment benefits.  She asserts that she is entitled to benefits under Minn. Stat. § 268.069, subd. 1 (2002), because she was able to perform clerical work, which was her "usual occupation" or "comparable employment," and, therefore, she was "able to work" under Minn. Stat. § 268.085, subds. 1(2), 14 (2002).  The Commissioner of Employment and Economic Development concedes that clerical work is "comparable employment" to work as a bartender under Minn. Stat. § 268.085, subd. 14.  But the commissioner asserts that relator was not "able to work" because the record shows that she was unable to perform any type of work, including clerical work, until after she delivered her baby. 

            Decisions of the commissioner's representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner's representative's factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  While this court defers to the commissioner's findings of fact if they are reasonably supported by the evidence in the record, we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            To be entitled to unemployment benefits, applicants must meet the following five requirements:

(1) the applicant has filed an application for unemployment benefits and established a benefit account in accordance with section 268.07;

            (2) the applicant is not subject to a disqualification from unemployment benefits under section 268.095;

            (3) the applicant has met all of the ongoing weekly eligibility requirements under sections 268.085 and 268.086;

                        (4) the applicant does not have an outstanding overpayment of unemployment benefits, including any penalties or interest, under section 268.18; and

                        (5) the applicant is not subject to a denial of unemployment benefits under section 268.182.

 

Minn. Stat. § 268.069, subd. 1.  The ongoing weekly eligibility requirements in Minn. Stat. § 268.085, subd. 1(2), which are at issue in this case, provide that an applicant must be "able to work" to be eligible to receive unemployment benefits for any week.  An applicant is "able to work" if she "has the physical and mental ability to perform the usual duties of the applicant's usual occupation or of comparable employment."  Minn. Stat. § 268.085, subd. 14. 

            The record shows that, when asked on a department questionnaire whether she discussed her medical concerns with a physician prior to quitting, relator responded that she had and that her physician "advised [her] not to work."  There are also two physician's notes in the record.  The first note, dated April 15, 2002, states that relator is to be "off work for six weeks until reevaluation."  The second note, dated June 7, 2002, states that relator continues to have debilitating headaches and that "[s]he should remain off of work until delivery."  In addition, relator's physician stated on a department medical statement dated June 18, 2002, that relator was "unable to work" from April 15, 2002 through the date she delivered her baby.  The physician left an area blank on the form where she could have designated a period of time during which relator had a "limited ability to work."  When asked on the medical statement to explain any restrictions on relator's ability to work, the physician explained that relator was not allowed to lift anything heavier than 20 pounds, work in a smoke-filled environment, or engage in repetitive arm movements.  At the appeal hearing on August 5, 2002, relator testified that her physician told her that she could not tend bar until her baby was born, but that her physician told her she could pursue other, more sedentary, "desk job[s]" as long as she was able to get up and move around for five minutes out of every hour.

The evidence showing that relator's physician imposed restrictions on relator's ability to work may suggest that her physician intended to limit her ability to work and did not intend for her to stop working altogether.  But the physician's notes, relator's statement on the department form that her physician "advised [her] not to work," the physician's statement on the medical statement that relator was "unable to work" until she had her baby, and the fact that the physician left blank an area on the medical statement form where she could have designated a period of time when relator had a "limited ability to work" support the decision reached by the commissioner's representative.  Viewing the evidence in the light most favorable to the commissioner's representative's decision, we conclude that the representative's holding that relator is not entitled to unemployment benefits because she was "unable to work" under Minn. Stat. § 268.085, subds. 1(2), 14, is reasonably supported by the evidence in the record.

            Affirmed.