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Bradley D. Blanski v. Full Moon Enterprises

April 15, 2013

BRADLEY D. BLANSKI, RELATOR,
v.
FULL MOON ENTERPRISES, INC., RESPONDENT (A12-1544), DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, RESPONDENT.



Department of Employment and Economic Development Notice1105

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

This opinion will be unpublished and may not be cited except as provided by Minn.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

Affirmed

Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Bjorkman, Judge.

CONNOLLY, Judge

Relator challenges two orders of the unemployment-law judge (ULJ). One order concluded that relator was ineligible to receive unemployment benefits because he was not available for or actively seeking suitable employment; the other dismissed relator's appeal of a revenue recapture because he did not participate in the evidentiary hearing.

Because the evidence substantially tends to sustain the findings on which these orders were based, we affirm both orders.

FACTS

In 2009, relator Bradley Blanski, a certified automotive technician, began to work for respondent Full Moon Enterprises Inc. Relator suffered from various physical problems, including neuropathy, disk degeneration in his back, blurred vision, and dizziness, and his lifting was restricted. He was terminated in February 2011, and opened a benefit account with respondent Minnesota Department of Employment and Economic Development (DEED).

In August 2011, relator began a job search in a different field. He looked online and checked classified ads for web-development jobs, but did not call any employers or register with temporary-job agencies.

In January 2012, DEED determined that relator was ineligible for benefits.

Relator appealed this determination and, following a telephone hearing, a ULJ issued a decision that relator had not been actively seeking employment from November 20, 2011, through the date of the hearing; would be ineligible for benefits until conditions changed; and had been overpaid $1,124.

Relator requested reconsideration of the ULJ's decision. Because that decision had not addressed whether relator's medical conditions made him unavailable for suitable employment and relator's opportunity to present facts and arguments regarding his availability for work and his job search had been limited at the hearing, another ULJ ordered a second evidentiary hearing.

Following that hearing, the ULJ issued a decision that relator was not available for or actively seeking employment from August 21, 2011, through the date of the second hearing; would be ineligible for benefits until conditions changed; and had been overpaid $5,532. In response to relator's request for reconsideration, the ULJ affirmed the decision. Relator sought certiorari review in this court.

Relator had previously sought certiorari review of another ULJ's dismissal of relator's challenge to DEED's filing a claim against his state tax refund to recapture the $1,124 overpayment. At the hearing on the revenue recapture, relator declined to cooperate with the ULJ, who found that relator had failed to participate in the hearing and dismissed the appeal on that basis.

Relator now challenges the determinations that he has not been available for or actively seeking suitable employment and that he failed to participate in the hearing on the revenue recapture issue.

DECISION

This court may reverse or modify the ULJ's findings or inferences if they are "unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 268.105, subd. 7(d)(5) (2012); see also Peterson v. Nw Airlines, Inc., 753 N.W.2d 771, 774 (Minn. App. 2008) ("[T]his court will not disturb the ULJ's factual findings when the evidence substantially sustains them."), review denied (Minn. Oct. 1, 2008).

1. Relator's availability for suitable employment

"'Available for suitable employment' means . . . there must be no other restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment." Minn. Stat. § 268.085, subd. 15 (2012).

"Suitable employment means employment in the applicant's labor market area that is reasonably related to the applicant's qualifications." Minn. Stat. § 268.035, subd. 23a(a) (2012).

The ULJ found that "[v]irtually all of [relator's] job experience is as an automotive technician. [Relator] is not medically able to perform even light duty automotive technician work." Relator's answers to the ULJ's questions during the second hearing support this finding.

Q. Could you work a light duty auto tech job with your medical problems[?]

A. I've tried that and I was terminated. . . . .

Q. . . . [A]ssuming an employer was able to accommodate you and you were given light duty work, would you be able to do light duty work with your medical conditions and your lifting restrictions as they are now[?]

A. I can't answer that because . . . they just upped my medications and I don't know if that's gonna interfere or is it gonna work, I don't know.

The ULJ also found that "[relator] was equivocal and elusive when asked if he could physically work jobs in data entry, retail, or call center settings." Again, relator's testimony supports this finding.

Q. Now on a bad day about how long . . . [could you] . . . sit in a chair before you need to stretch or move around[?]

A. Sometimes as little as ten minutes. Q. And about how long would you need to take a break before you can sit again[?]

A. . . . [I]t would probably be about 15 minutes or so. Q. . . . And about how often would you say you have a bad day or a day where you have pain[?] . . .

A. It's about every day now . . . . Q. Do you have problems with standing for long periods of time[?]

A. I don't know, I never tried standing for long periods of time . .

Q. Do you have any problems with typing or using a ...


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