FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
JEFFREY W. BATES, P.J.
Brunk (Claimant) is disabled and was receiving Social
Security Disability Insurance (SSDI) payments when he
collected unemployment benefits. He now appeals two
decisions, consolidated in this appeal, from the Labor and
Industrial Relations Commission (Commission). It determined
that he was ineligible for benefits, overpaid and subject to
a penalty during the 15 weeks at issue. The Commission
decided that Claimant was ineligible for unemployment
benefits because: (1) he was "not available for full
time work" during that entire period; and (2) he was not
"able to work, " in that he was "restricted
from working" seven of those weeks while he recovered
from shoulder surgery. Based upon this eligibility
determination, the Commission also decided that Claimant was
overpaid benefits and had to pay a 25% penalty because he
"willfully failed to disclose or falsified facts that
would have disqualified" him from receiving benefits and
that he "willfully failed to report earnings"
correctly for a four-hour orientation period.
presents two points for decision. Point 1 contends the
Commission's decision that Claimant was not
"available for work" or "able to work"
was based upon an incorrect interpretation and application of
§ 288.040.1(2). Alternatively, Point 2 contends there was
not "competent and substantial evidence in the
record" to support the Commission's findings that
Claimant: (1) was not available for work or able to work; (2)
"willfully failed to disclose or falsified facts"
that disqualified him; and (3) "willfully failed to
report earnings." Point 1 is dispositive because we
agree with Claimant that the Commission incorrectly
interpreted and applied § 288.040.1(2) by deciding
Claimant was neither available for work nor able to work.
Accordingly, the issues raised in Point 2 are moot and need
not be addressed. We reverse and remand for further
proceedings consistent with this opinion.
and Procedural Background
suffered a traumatic brain injury from a car accident and has
been receiving SSDI benefits since 1986. He was employed at
Silver Dollar City performing "custodial type work[,
]" such as picking up trash, mopping floors and washing
dishes. Claimant's work was seasonal, and he was laid off
from work on December 30, 2015. He had a recall date with
Silver Dollar City of April 2, 2016. Because of this recall
date, Claimant was not required to make work search contacts
from January 3, 2016 through April 2, 2016. A witness for the
Division of Employment Security (Division) testified that
excusing those employees with a recall date from the work
search requirement allowed a seasonal employer to retain
trained employees during downtimes. According to the Division
witness, because the employer could potentially call the
employee back prior to the scheduled recall date, the
employee still had to be available for work and able to work
each week during the recall period.
had shoulder surgery at the end of February 2016, and his
right arm was put in a brace. On Friday, March 5, 2016,
Claimant attended his orientation at Silver Dollar City,
accompanied by both his job coach and case manager for his
traumatic brain injury. According to Claimant, his doctor
released him to work "light duty" using only his
left hand. Because Claimant was taking pain medication as the
result of his shoulder surgery, he failed his drug test at
orientation. The following Monday, Claimant provided Silver
Dollar City with documentation that included his prescription
for the pain medication and a work release showing lifting
restrictions for his right arm. After providing this
documentation, Claimant believed Silver Dollar City was going
to accommodate his right-arm restriction and let him know
when he would be on the work schedule again. Even with
limited use of his right arm, Claimant believed that he was
able to continue performing the work that he had done
previously at Silver Dollar City. At the time of
Claimant's orientation, Silver Dollar City was not open
to the public. In the weeks that followed, however,
Silver Dollar City never called Claimant back to work.
continued to report "no work earnings" every week
to the Division, from January 3, 2016 through April 9, 2016,
except for one week - the week of his orientation. At that
time, Claimant was unaware that he was getting paid for
orientation. Once he received a paycheck for 4.08 hours of
orientation, he reported the income, but by then, the report
was two weeks late. Claimant also mistakenly reported the net
pay on his paycheck of $30.03, instead of his gross pay of
Claimant's recall date of April 2, 2016 had passed and
Silver Dollar City had not called him back to work, Claimant
inquired about other job opportunities. Claimant testified
that he inquired at Lowe's, Country Mart and Casey's,
but no one was hiring. Claimant was paid unemployment
benefits through the week ending April 16, 2016.
to the Division witness, Claimant's failure to timely and
accurately report the income he received for orientation
triggered an audit of Claimant's claim for unemployment
benefits. In a May 2016 statement, Claimant told the Division
that he had been receiving SSDI benefits since 1986 and was
seeking only part-time work to keep his earnings under $1,
100 a month in order to keep his SSDI. A deputy for the
Division determined that Claimant was ineligible for
unemployment benefits because he was "not available for
work" since he was "not seeking full time
appealed this decision and participated in a telephone
hearing in July 2016. Claimant testified that he received SSDI
benefits and was limited to earning under $1, 100 a month.
The record is unclear as to how many hours Claimant actually
worked per week, and he was not asked how many hours he could
work to stay under the SSDI threshold. Based on his March
2016 paycheck of $34.68 gross pay for 4.08 hours,
Claimant's calculated wage was $8.50 an hour. At that
wage, he could work 30 hours per week and still keep his
monthly earnings under $1, 100. Claimant testified that,
except for his monthly earning limitation, he had no other
restrictions regarding days and times he was available to
work each week.
Appeals Tribunal of the Division (Tribunal) determined that
Claimant was not eligible for unemployment benefits.
According to the Tribunal, Claimant "was not willing to
earn over $1100, because he did not want to lose that [SSDI]
income. Therefore, claimant restricted his work and his work
searches to part time work." The conclusions of law
stated that "[d]uring the weeks of January 3, 2016, to
April 16, 2016, the claimant was restricted from working full
time due to his long term disability of severe memory loss
and his receipt of SSDI. During the weeks of January 3, 2016,
to April 16, 2016, the claimant was not able, willing, and
ready to accept suitable full time work." The
conclusions of law also stated that "[d]uring the weeks
of February 28, 2016, through April 16, 2016, claimant was
restricted from working while he had shoulder surgery and was
under a doctor's care during his recovery."
the Division decided that: (1) Claimant was overpaid $1, 053
in benefits from January 3, 2016 to April 16, 2016; and (2)
Claimant had to pay a 25% penalty because the overpayment was
"the result of claimant fraud." The Tribunal
affirmed this second determination because: (1) Claimant
"willfully failed to report his earnings" of $34.68
gross earnings (instead of the reported $30.03 net amount) in
the correct week; and (2) he "willfully failed to
disclose or falsified facts that would have
disqualified" him by failing "to disclose that he
was not able or available to work full time." The
Commission reviewed, affirmed and adopted both decisions of
the Tribunal. This appeal followed.
the Commission adopts the decision of the Tribunal, we
consider the Tribunal's decision to be that of the
Commission for purposes of our review. Ashford v. Div. of
Emp't Sec., 355 S.W.3d 538, 541 (Mo. App. 2011). The
decision of the Commission may be modified, reversed,
remanded for rehearing, or set aside by this Court if: (1)
the Commission acted without or in excess of its powers; (2)
the decision was procured by fraud; (3) the facts found by
the Commission do not support the award; or (4) there is not
sufficient competent evidence in the whole record to warrant
the making of the award. § 288.210 RSMo (2000).
"Determination of witness credibility is left to the
Commission, not to the reviewing court." Reed v.
Div. of Emp't Sec., 469 S.W.3d 853, 856 (Mo. App.
2015). In determining whether sufficient competent evidence
supports the award, or, in essence, whether the award is
contrary to the overwhelming weight of the evidence, we do
not view the evidence and inferences therefrom in the light
most favorable to the award. Reed, 469 S.W.3d at
855; Johnson v. Div. of Emp't Sec., 318 S.W.3d
797, 800 (Mo. App. 2010). "Instead, we must objectively
review the entire record, including evidence and inferences
drawn therefrom that are contrary to, or inconsistent with,
the Commission's award." Johnson, 318
S.W.3d at 800; Reed, 469 S.W.3d at 855.
deciding whether the Commission's decisions correctly
apply the law, "we are not confined to its conclusions
of law or its application of law to the facts."
RPCS, Inc. v. Waters, 190 S.W.3d 580, 583 (Mo. App.
2006). "Each question receives independent review with
no deference given to the Commission's
determinations." Id.; see Evans v. Div. of
Emp't Sec., 354 S.W.3d 220, 223-24 (Mo. App. 2011).
Further, Missouri employment security law "shall be
liberally construed to accomplish its purpose to promote
employment security ... by providing for the payment of
compensation to individuals in respect to their
unemployment." § 288.020.2 RSMo (2000); Wester
v. Missouri Dept. of Labor & Indus. Relations, 134
S.W.3d 757, 759 (Mo. App. 2004). "Therefore,
disqualifying provisions in employment security law are
strictly construed against the disallowance of benefits.
a claimant bears the burden of demonstrating that he is
entitled to unemployment benefits. Tamko Bldg. Products,
Inc. v. Pickard, 443 S.W.3d 68, 70 (Mo. App. 2014). The
applicable provision here is § 288.040, which provides
that a claimant who is unemployed is eligible to receive
benefits only if he is "available for work" and
"able to work[.]" § 288.040.1(2).