Burnside v. Gate City Steel Corp. , 112 Idaho 1040 ( 1987 )

BAKES, Justice.

Robert Burnside appeals from an Industrial Commission decision finding him ineligible to receive unemployment benefits from October 14, 1984, through January 5, 1985; January 13, 1985, through February 3, 1985; and February 10, through March 16, 1985. Burnside also appeals the commission’s decision finding that the requirement to repay benefits already received should not be waived. Finding no error of law in the commission’s proceedings, and finding their decision supported by substantial competent evidence, we affirm.

Burnside, an employee for 13 years with Gate City Steel Corporation, was indefinitely suspended from his employment on September 20, 1984, because of felony criminal charges filed against him. Burnside filed a claim for unemployment compensation on October 16, 1984, with the Department of Employment. As a part of the claim process he was also required to execute an “eligibility review agreement.” Under that agreement Burnside was required to make at least 3-4 new job contacts a week, a majority of the contacts to be in person; to keep a detailed list of the contacts; and to contact 5 specifically named employers.

Burnside began receiving unemployment benefits beginning on October 14, 1984, and continuing through January 5, 1985. He did not claim benefits for the week of January 6 through January 12, 1985. Benefits were again paid from January 13 through February 2, and then from February 10 through March 16, 1985. As a part of the weekly claim process, Burnside filed weekly certification cards with the Department of Employment in which he certified that he was eligible for unemployment benefits during the week represented on the certification card.

On March 20, claimant’s eligibility for unemployment benefits was reviewed by the Department of Employment. Burnside was interviewed, and he was asked to submit the “detailed list of contacts” required by the eligibility review agreement in order to document his efforts to find employment since filing for unemployment benefits. Burnside did not have the required records.

On March 22, 1985, the department issued an eligibility determination holding that Burnside had not been eligible for benefits during several of the weeks for which he had received benefits. Primarily, the department made the finding that Burnside had failed to abide by the work search requirements of I.C. § 72-1366(d) and had failed to submit an adequate detailed list of contacts required by the eligibility review agreement. As a result, the department determined that Burnside had received an overpayment of benefits in the amount of $3,287.

Burnside protested the department’s determination of overpayment. Following a redetermination proceeding on April 5, 1985, the department affirmed the earlier determination of ineligibility and overpayment. Burnside appealed that determination to the appeals bureau of the department, and a telephone hearing was held on May 30, 1985. Burnside was represented by an attorney at that hearing. On June 18, 1985, the appeals examiner entered an order upholding the previous redetermination of ineligibility and overpayment of benefits.

Burnside then appealed to the Industrial Commission which held a hearing in Idaho Falls on September 20, 1985. Burnside, who was again represented by counsel, presented additional evidence at that hearing, including his own testimony as well as documentary evidence in support of his claim that he had complied with the work search requirements of I.C. § 72-1366(d). The Industrial Commission issued its decision on November 18, 1985, finding that Burnside was indeed ineligible for unemployment benefits during the period for which he received payment of benefits and that he was required to repay the sum of $3,287, and that repayment could not be waived.

Burnside raises two issues on appeal: (1) whether the Industrial Commission erred in its finding that claimant had not complied with statutory work search requirements; and (2) whether the Industrial Commission erred in holding that claimant was not entitled to a waiver of overpayment.

I

Idaho Code Section 72-1366 sets forth the conditions which a claimant must meet to be eligible to receive unemployment benefits:

“72-1366. Personal eligibility conditions. — The personal eligibility conditions of a benefit claimant are that—

“(a) In accordance with the provisions of this act, and such rules consistent therewith, as the director may prescribe—

“(1) He shall have made a claim for benefits and provided all necessary information pertinent to eligibility.

“(2) He shall have registered for work and thereafter reported at an employment office or other agency in a manner prescribed by the director.

“(d) During the whole of any week with respect to which he claims benefits or credit to his waiting period he was able to work, available for suitable work and seeking work____”

The claimant bears the burden of showing that he has satisfied all of the eligibility requirements, Guillard v. Dept. of Employment, 100 Idaho 647, 603 P.2d 981 (1979), and, as we stated in Hudson v. Hecla Mining Co., 86 Idaho 447, 452, 387 P.2d 893, 896 (1963): “No hard or fast rule definitive of elements of proof of those requirements of benefit eligibility ‘should be or perhaps could be adopted; it must depend, at least in part, upon the particular facts and circumstances as developed in each case.’ ” Thus, the question of whether a claimant has met the eligibility requirements of I.C. § 72-1366 is a question of fact for the Industrial Commission to decide. Hudson v. Hecla Mining Co., supra. If the commission’s resolution of such questions of fact is supported by substantial competent evidence on the record it will not be overturned on appeal.

The commission in the present case found that claimant’s work-seeking efforts were not sufficient to qualify him to receive benefits. The commission specifically found that over the 20-week period in question during which claimant received benefits, he contacted at most sixteen prospective employers, or less than one employer contact per week. Under his agreement he should have contacted 60-80 employers.¹ This evidence sustains the Industrial Commission’s finding that such work-seeking efforts did not meet the requirements of the eligibility review agreement or the “seeking work” requirement of I.C. § 72-1366(d). A claimant is “under a continuing duty to inquire of prospective employers for work that he is capable of performing.” Hudson v. Hecla Mining Co., 86 Idaho at 450, 387 P.2d at 895. Mr. Burnside’s efforts in contacting employers at a rate of less than one per week did not meet his burden of proof as the commission found.

Furthermore, I.C. § 72-1366(a)(l) expressly states that a claimant must provide “all necessary information pertinent to eligibility.” In the present case claimant failed to keep a current list of employer contacts as required by the statute and his “eligibility review agreement.” It was not until claimant contested the department’s determination of ineligibility that he reconstructed from memory the names and approximate dates of the employer contacts made. The eligibility review agreement which claimant executed upon filing his initial claim for benefits expressly required him to make at least three to four new job contacts a week, the majority of which were to be in person. The agreement also required claimant to keep a detailed list of contacts. The agreement expressly stated that claimant’s employer contacts “are subject to verification.” The Industrial Commission found that the claimant had not met the requirements established in the eligibility review agreement or the provisions of I.C. § 72-1366. The Industrial Commission’s decision upholding the Department of Employment’s determination of ineligibility is supported by substantial competent evidence, and accordingly we affirm the same.

II

Idaho Code Section 72-1369(a) requires that “[a]ny person who received benefits to which he was not entitled under the provisions of this act ... shall be liable to repay said benefits____” Subsection (4) of I.C. § 72-1369(a) grants limited discretion to the director of the Department of Employment or his authorized representative to waive the requirement of repayment of improperly or overpaid benefits if two express conditions are met. The first statutory condition is that it must be shown that the “payments were made solely as a result of department error or inadvertence,” and secondly, that the payments were “made to a claimant who had no way of knowing that he was receiving benefits to which he was not entitled.” (Emphasis added.)

The commission found that the director had not abused his discretion in refusing to waive repayment. While the commission was correct in finding that there was no evidence of abuse of discretion, a careful reading of the statute discloses that neither of the two necessary statutory conditions were present in order to give the director any discretion to exercise in this case. Accordingly, the director had no discretionary authority to waive the repayment obligation.

In the first place, overpayment cannot be attributed solely to department error or inadvertence. The responsibility for overpayment of benefits lies with claimant. It was claimant’s failure to meet the eligibility requirements of I.C. § 72-1366, as supplemented by the eligibility review agreement, which constituted the cause for wrongful payment of benefits. Secondly, claimant was clearly in possession of information which would lead him to believe that he was receiving benefits to which he was not entitled. The eligibility review agreement expressly provided that “failure to comply with this plan could result in denial of benefits.” Furthermore, the facts booklet concerning unemployment benefits given to claimant at the time of his original filing for unemployment benefits stated, “You must be actively seeking work by contacting employers who normally hire individuals with your work skills.” The information contained in the facts booklet, as supplemented by the requirements of the eligibility review agreement, clearly put claimant on notice that failure to actively seek work, which under the eligibility review agreement required claimant to contact three to four employers a week, would render him ineligible for benefits. Even though possessed with this information, the claimant nevertheless executed each week a certification card in which claimant represented that he was meeting the eligibility requirements imposed by the Department of Employment.

Since the statutory conditions necessary for waiver under I.C. § 72-1369(a)(4) do not exist in this case, there were no grounds upon which the director could properly exercise his discretion and waive the repayment requirement of I.C. § 72-1369. In short, no statutory grounds have been shown to exist upon which claimant could assert that the director could exercise his discretion, much less abuse it.

Accordingly, the decision of the Industrial Commission is affirmed. Costs to respondent Department of Employment. No attorney fees awarded on appeal.

SHEPARD, C.J., and DONALDSON and HUNTLEY, JJ., concur.

1 . The department, on review of claimant’s asserted job contacts prior to his appeal to the appeals bureau, did give him credit for three contacts in the weeks January 12, 1985, and February 9, 1985, and allowed the benefits for those weeks to stand. The credit given for contacts during these weeks reduces even further (by at least six) the number of contacts for the 20-week period in question. Thus, instead of sixteen total contacts spread over twenty weeks, claimant has only ten to spread over that period of time.