Jensen v. DWS

Jensen v. DWS

IN THE UTAH COURT OF APPEALS
 

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Kristen Jensen,

Petitioner,

v.

Department of Workforce Services,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030385-CA
 

F I L E D
(September 10, 2004)
 

2004 UT App 303

 

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Original Proceeding in this Court

Attorneys: Kristen Jensen, Brigham City, Petitioner Pro Se

Michael R. Medley, Salt Lake City, for Respondent

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Kristen Jensen seeks judicial review of the decision of the Workforce Appeals Board (Board) that she was not unemployed under Utah Code section 35A-4-207(1) and assessing a fault overpayment. See Utah Code Ann. § 35A-4-207(1) (2001).

    Jensen was employed as a construction helper by RM Jensen Construction Company (the Company), which was owned by her mother. When no construction work was available, Jensen sought Internet leads to obtain construction jobs for the company. She was not paid a wage or commission for this activity. However, if the company obtained a job, she was paid an hourly wage for work at the construction site. Jensen filed for unemployment benefits effective June 30, 2002, after being informed that she must do so in order to qualify for Medicaid benefits. She described her employment to caseworkers assisting her to obtain Medicaid benefits. She testified the caseworkers led her to believe that efforts to obtain work for the Company over the Internet satisfied the active work search requirement. In October of 2002, she was advised this activity would not qualify as a work search. In making her claim for benefits, she acknowledged receipt of the Unemployment Insurance Claimant Guide. Jensen received unemployment insurance benefits for the weeks ending July 13, 2002 through October 19, 2002. For each week, she certified she was making an active work search.

    The Administrative Law Judge (ALJ) concluded that Jensen was not unemployed during the relevant time period and assessed a fault overpayment in the amount of $1056. The Board affirmed. Jensen disputes the factual finding that she was not unemployed because she was not available for, or seeking, full-time work from June 30, 2002 to October 23, 2002. She also claims she relied upon information from her caseworkers that searching the Internet for work for the Company met the work search requirements and was not at fault in the overpayment.

    We review a challenge to an agency's findings of fact by considering whether there is substantial evidence in the record as a whole to support the findings. See generally Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989). This "necessarily requires that a party challenging the Board's findings of fact must marshall all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence." Id.

    The finding that Jensen was not unemployed is supported by substantial evidence in the record as a whole. Jensen stated to caseworkers that she did not want to leave the Company, although it provided her only sporadic, part-time work. She applied for unemployment benefits because she was required to do so in order to obtain Medicaid benefits. Jensen did not actively search for other full-time work. Even if she had been successful in obtaining jobs for the Company, she worked only four or five hours per day on any job. In fact, she testified that she had worked only ten hours during October of 2002 and twenty-nine hours during November of 2002. Jensen was on notice of the requirements for an active work search by her acknowledged receipt of the claimant's guide and knew, or should have known, that her search was not a bona fide search for full-time employment. The Board stated that "[a]ccepting Jensen's testimony that she was told seeking leads for her mother's company qualified as a valid work search, she knew--or is chargeable with knowing--that she was not meeting the . . . requirements, as set out in the claimant guide, to be actively seeking full-time employment."

    Jensen claims that the ALJ ruled without reviewing a copy of the "Employment Plan" she faxed after the hearing. Although the plan does not appear in the agency record, the Board conceded that Jensen received incorrect information, but it found that the claimant guide was clear in stating the requirements for an active search for full-time work. Jensen did not assert before the Board that the ALJ did not consider all relevant evidence, and it is clear that the Board fully considered her claims. The Board correctly imposed the fault overpayment, but declined to assess a fraud penalty or disqualification from future benefits.

    We affirm the Board's decision.

______________________________

Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge