Smith v. State ( 1984 )

BAKES, Justice,

dissenting:

The Court finds no error in the law applied by the Industrial Commission, but the Court’s opinion disagrees with the commission’s finding of fact concerning willfulness, and thus reverses the Industrial Commission on that factual basis. The majority’s action violates both our statutory and constitutional duties and limitations. See Idaho Const, art. 5, § 9 (“On appeal from orders of the [commission] the court shall be limited to a review of questions of law.”), and I.C. § 72-732 (“Upon hearing the court ... may set [the order] aside only upon any of the following grounds: ... (1) The commission’s findings of fact are not based on any substantial competent evidence ____”).

The majority correctly states that “the question [to be decided] is whether the number of hours worked — independent of any compensation received — constitutes a ‘material fact’ within the meaning of I.C. § 72-1366(i). We hold that it does.”

The Court then further correctly states the law to be that “[t]he number of hours during the week which a claimant is working, even though the work may be voluntary and no compensation received, may nevertheless be material to the question of whether he is ‘available for suitable work, and seeking work’ as required for eligibility under I.C. § 72-1366(d). Hence, the number of hours worked during the week for his employer, whether they be gratuitous or for pay, is a material fact and must be reported by the claimant.”

However, after correctly setting out the law, the majority then makes a factual finding that the claimant’s failure to report both his additional work for his radio station employer, and his work for another person installing electronic equipment at the Duck Valley Indian Reservation, was not “willful.” The rationale for that finding of lack of willfulness, even after recognizing that the claimant had omitted material facts from his application, is based upon the claimant’s testimony of his own subjective intent that “he [the claimant] felt he did not need to report them. He was not aware that they were ‘material.’ ” Based upon those subjective assertions by the claimant, the Court then enters its own factual finding that the omission of those material facts was not “willful.”

However, the commission found the facts to be otherwise, deciding that the omission was willful. The commission apparently chose not to accept the claimant’s explanation that “he felt he did not need to report them.”

The commission is not bound to accept any claimant’s testimony of his own subjective intent if that testimony is inconsistent with other objective facts in the record. If the commission were bound by claimants’ statements of their own subjective state of mind, as the majority is apparently willing to say in this case, then claimants would always prevail, even though they grossly omitted material facts, if they were willing to testify that they did not know that the material facts were material or, that they felt they did not have to report them. However, that is not the law.

In Meyer v. Skyline Mobile Homes, 99 Idaho 754, 589 P.2d 89 (1979), we noted, in defining the word “willful,” that it

“ ‘implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, in the sense of having an evil or corrupt motive or intent. It does imply a conscious wrong, and may be distinguished from an act maliciously or corruptly done, in that it does not necessarily imply an evil mind, but is more nearly synonymous with “intentionally,” “designedly,” “without lawful excuse,” and therefore not accidental.’ ” Id. at 761, 589 P.2d 89, quoting from Archbold v. Huntington, 34 Idaho 558, 565, 201 P. 1041, 1043 (1921).

The commission’s decision in this case includes the following findings:

“The weekly certification form which the claimant was required to file with the Department of Employment to claim his benefits clearly requires a claimant to report both the amount of his earnings and the number of hours he worked for each employer during each week. Question number 1A on the form requires that the claimant check a block marked either ‘yes’ or ‘no’ preceding the statement ‘I worked or had earnings.’ (Emphasis supplied.) Other blocks require the amount of earnings and hours worked. (Exhibit No. 18.) Although the claimant correctly reported his actual earnings from the radio station, he did not report the actual number of hours he worked in most instances. During all but two of the weeks between November 1 and February 20, the claimant worked substantially more than seven hours per week.”

Thus, the commission found, as a matter of fact, that although the claimant made weekly reports to the department and was asked the number of hours worked, he continued to report that he was working only seven hours per week even though, in nearly all of the weeks he reported, he worked substantially more than seven hours. The commission also found, as a matter of fact, that the claimant expected to be paid for the extra hours he worked. The commission, through the referee, then found:

“The Referee concludes that in this ease the claimant consistently failed to report to the Department of Employment the number of hours he worked when he filed his weekly claims for benefits. As has been pointed out, this information is material to his eligibility. ... In this case, it is clear that the claimant did not make a complete and unqualified disclosure of the number of hours he worked to the Department of Employment. The Referee therefore concludes that the claimant willfully failed to report material facts (the number of hours worked) in order to obtain unemployment insurance benefits.” (Emphasis supplied.)

All of these findings are supported by the record. The question on review is whether or not the commission’s decision is supported by the evidence, not what this Court thinks that the claimant “felt.” The Court’s action is an invasion of the commission’s exclusive factfinding responsibility and right. The commission’s finding that the claimant willfully failed to report a material fact is clearly sustained by the record. The commission should be affirmed on that finding.

Finally, the Court’s handling of the failure to report his work at the Duck Valley Indian Reservation is even more difficult to understand. After noting that “[t]he omission was of material facts,” the majority states that “inasmuch as claimant suffered a net loss of approximately $60.00 on the project, there were no earnings to report, and claimant’s failure was not ‘willful’.” As the majority correctly notes in the early part of its opinion, the reason why the number of hours worked during the week by a claimant is material, even though the work may be voluntary and no compensation received, is because it goes to the question of whether the claimant is “ ‘available for suitable work, and seeking work’ as required for eligibility under I.C. § 72-1366(d).” Ante at 1242. Based upon that statement of the law, it is difficult to understand how the majority can state that even though the claimant was working at the Duck Valley Indian Reservation, and therefore was not available for other work, nevertheless because he “suffered a net loss of approximately $60.00 on the project, there were no earnings to report, and claimant’s failure was not ‘willful’.” Because of that work he was not available for other work. Had he made a profit on that project, I presume the majority would state that his failure to report it was “willful.” The fact that he may have lost money on the job, if that is the case, and there was no finding by the commission that he lost money,¹ that does not make him any more “available for suitable work, and seeking work” as the majority correctly states his obligation under the law to be.

The commission’s findings in this case are supported by substantial competent evidence, and I would affirm the commission.

SHEPARD, J., concurs.

1 . The hearing examiner found:

"In December, 1981, the claimant assisted another individual on the installation of some television antennae systems. The claimant invested money for parts for which he expected reimbursement. Although the project was not completed, the other individual paid him approximately $45 for his services. There was no report of the earnings made on the claim for benefits."

The Industrial Commission found:

"In December, 1981, the claimant assisted another individual to install electronic equipment on the Duck Valley Indian Reservation. He subsequently received approximately $45.00 for his services. He has not yet been reimbursed for parts which he purchased and installed. The claimant did not report any earnings or any hours worked on this project to the Department of Employment.”