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Trocon U. Mentoe v. Home Care Resources LLC

April 8, 2013

TROCON U. MENTOE, RELATOR,
v.
HOME CARE RESOURCES LLC, RESPONDENT, DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, RESPONDENT.



Department of Employment and Economic Development File No. 29379370-3

The opinion of the court was delivered by: Chutich, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Reversed and remanded

Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Chutich, Judge.

UNPUBLISHED OPINION CHUTICH, Judge

Relator Trocon Mentoe challenges the decision of the unemployment-law judge that his administrative appeal was appropriately dismissed because Mentoe did not have good cause to miss a scheduled telephonic hearing. Because the department did not inform Mentoe of his responsibilities regarding the hearing and because the unemployment-law judge's findings are not substantially supported by the record, we reverse and remand.

FACTS

Mentoe filed an application for unemployment benefits and established an account with the Minnesota Department of Employment and Economic Development (the department) after his employment with Home Care Resources, LLC, ended. The department deemed Mentoe eligible for unemployment benefits and, beginning in August 2010, he received benefits regularly. In early 2012, the department conducted a wage-verification review of Mentoe's account and found that he had failed to report certain earnings that resulted in an overpayment of benefits. Thereafter, the department informed Mentoe of its finding of "overpayment fraud" in eight separate "determination of ineligibility" letters, each of which was assigned a specific issue-identification number.

Mentoe timely appealed the department's ineligibility determinations in eight separate online submissions, each corresponding to the department's eight separate issue-identification numbers. On seven of his eight appeal submissions, Mentoe listed his telephone number with a 612 area code. On one submission, Mentoe inadvertently listed his telephone number with a 651 area code. The department responded to Mentoe's appeal submissions by sending Mentoe eight separate notices of appeal informing him that he was scheduled for a telephone hearing with an unemployment-law judge on Friday, March 16, 2012, at 2:15 p.m. Each notice explained that Mentoe was to contact the department's appeals office if he needed to reschedule his hearing because the date or time did not work or if he required any accommodations. Each notice informed Mentoe that the unemployment-law judge would, at the time of the scheduled hearing, call him at the telephone number he had provided on his online appeal submissions. No notice contained any information regarding what Mentoe was to do if he did not receive a call from the unemployment-law judge at the time of his scheduled hearing. Each notice listed Mentoe's telephone number, but one notice among the eight listed his telephone number with the incorrect 651 area code. The other seven notices listed Mentoe's telephone number with the correct 612 area code.

The record on appeal contains a transcript of the evidentiary hearing. The transcript lists, at the top of the first page, each of the eight issue-identification numbers assigned to each of Mentoe's determinations of ineligibility and related notices of appeal. One such identification number-that which corresponds to the two documents reflecting the incorrect 651 area code-is bolded and underlined. The rest of the identification numbers are listed in normal font.

On the date of the scheduled hearing, the unemployment-law judge dialed a telephone number*fn1 and reached a voicemail message beginning "Hi. You've reached Kim." The unemployment-law judge left a message stating that the judge was calling for Mentoe and that Mentoe was to call back "as soon as possible" to participate in the hearing scheduled for 2:15 p.m. The unemployment-law judge re-dialed the telephone number a short time later, received the same voicemail, and left a similar message. Two representatives from Home Care Resources were on the line with the unemployment-law judge and prepared to participate in the hearing. When the unemployment-law judge concluded that Mentoe was not going to call back or otherwise participate in the hearing, the judge ended the hearing without taking any testimony.

The unemployment-law judge dismissed Mentoe's ineligibility-determination appeal because he failed to personally participate in the hearing. Mentoe was therefore "considered to have failed to exhaust his available administrative remedies" unless he filed a request for reconsideration and established good cause for failing to participate in the hearing. Mentoe timely filed an online request for reconsideration. Mentoe explained that he had good cause for not participating in the hearing because he did not receive a phone call from the unemployment-law judge at any time during the day of the scheduled hearing. Mentoe stated that he had his phone with him throughout the day of the hearing, that he never left his house that entire day because he wanted to "settle this issue," and that "[t]his is my number 612-[number provided]."

Upon reconsideration, the unemployment-law judge concluded that Mentoe had not provided good cause for failing to participate in the hearing and that his appeal of the ineligibility determinations had therefore been properly dismissed. The unemployment-law judge's order was based on her finding that [b]oth parties were sent a telephone hearing instructions sheet with the notice of appeal which states, "[i]f you don't get a call within 10 minutes after the scheduled time, call us at 651-296-3745." Mentoe did not indicate in his request for reconsideration why he did not call the Department to report that he had not received a phone call for the appeal hearing.

The unemployment-law judge reasoned that a new hearing would not be scheduled because "a reasonable person acting with due diligence" would have "take[n] care" to (1) be available for the appeal hearing "at the telephone number he provided to the Department," and (2) call the department within ten minutes of not ...


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