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Brunk v. State, Division of Employment Security

Court of Appeals of Missouri, Southern District

March 19, 2018

MATHEW BRUNK, Claimant-Appellant,


          JEFFREY W. BATES, P.J.

         Mathew 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.

         Claimant 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).[1] 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.

         Factual and Procedural Background

         Claimant 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.

         Claimant 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.[2] In the weeks that followed, however, Silver Dollar City never called Claimant back to work.

         Claimant 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 $34.68.

         After 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.

         According 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 employment."

         Claimant appealed this decision and participated in a telephone hearing in July 2016.[3] 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.

         The 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."

         Thereafter, 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.

         Standard of Review

         When 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.

         In 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. Id.

         Generally, 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).

         Discussion ...

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