Luskin v. Department of Employment , 100 Idaho 584 ( 1979 )

SHEPARD, Chief Justice.

This is an appeal from an order of the Industrial Commission holding a claimant ineligible for unemployment benefits because he wilfully made false statements. We reverse.

Claimant-appellant Luskin filed a claim for unemployment benefits on November 22, 1976, and upon the filing of a weekly claim form continued to receive benefits through the latter part of February, 1977. Claimant neglected to make his weekly report for the week ending February 26,1977, and his explanation was that he had simply forgotten to do so.

In an interview with a claims taker, however, following which a written statement was prepared for claimant’s signature, claimant indicated that he had been busy on the day in question working to pay off a debt. The statement further indicated that he had been working twice a week for some period of time to pay off that debt.

Claimant was thereafter notified that his claim for the week of February 26 would be allowed, but he was also issued a determination of an overpayment because of his failure to report part-time employment. Claimant requested a redetermination and asserted that his explanation for reporting late was misunderstood and that he in actuality had not worked at all during the time of receipt of unemployment benefits. Claimant requested an additional hearing and one was held, at which the issue to be decided was whether Luskin had been overpaid because of his failure to report part-time employment. At the conclusion of the hearing, the examiner found that claimant had not in fact worked at all while drawing benefits, but that he had fabricated such story to justify his failure to report on time for the week of February 26. The examiner concluded thus that Luskin had not been overpaid, but he should be denied benefits for the week of February 26 for failing to report on time. Neither party appealed nor in any way contested this decision.

Subsequent to that decision of the appeals examiner, a new determination was issued by the department denying Luskin future benefits on the basis that he had withheld material facts and made false statements in an effort to obtain unemployment benefits. A new appeals examiner conducted a hearing thereon and that determination denying future benefits was affirmed. The Industrial Commission itself then considered the appeal, found claimant had invented the story relating to part-time employment and accordingly ordered that Luskin be denied unemployment benefits for a period of 52 weeks, as required by I.C. § 72-1366Ü).¹

Claimant argues two principal issues on appeal: first, that the second hearings examiner and the Industrial Commission lacked jurisdiction to adjudicate the issue of his alleged fabrication, and second, that the conclusions of the second hearings examiner and Industrial Commission are not supported by the evidence. Our disposition of the jurisdictional question renders consideration of the second issue unnecessary.

It is not disputed but that when the first hearing process was initiated, the only issue to be resolved was whether Luskin had been overpaid because of his failure to report part-time employment. The issue as to claimant making wilful false statements in order to obtain benefits did not arise until the time of the hearing when Luskin presented testimony into evidence that was contrary to the written statement given to the claims taker. It is clear that the Department of Employment must have some recourse to adjudicatory procedure in order to deal with such circumstances. Unscrupulous claimants must not be able to gain benefits by fabricating facts or making contradictory statements with impunity. The only question here necessary of resolution is the proper procedure to use in such instances.

Following the initial hearing, the examiner determined that claimant had not been overpaid, but should be denied benefits for the week of February 26. Neither side appealed or in any other manner contested this decision. Claimant argues thereafter that the appropriate procedure is set forth by statute and that the director of the department should have issued a special redetermination or the department should have sought relief from the appeals examiner. We agree.

In such circumstances where the claimant himself produces evidence that might form an additional basis for the denial of the benefits, the procedure outlined in I.C. § 72-1368(f) is applicable. The additional issue should be called to the attention of the hearings examiner and thus permit him an opportunity to “rehear, affirm, modify, set aside or reverse any prior decision on the basis of the evidence previously submitted in such case or on the basis of additional evidence . . .Id. The claimant, of course, must also be given notice and a fair opportunity to meet the issue. White v. Idaho Forest Indus., 98 Idaho 784, 572 P.2d 887 (1977). Here, the claimant himself has created the new issue by changing his testimony and story, and thus the department cannot be charged with subjecting him to an unduly protracted appellate process. This case is, therefore, distinguishable from the circumstances condemned in Colvard v. Department of Employment, 98 Idaho 868, 574 P.2d 910 (1978).

The Department of Employment asserts that the decision of the Industrial Commission should be affirmed because claimant did not raise the issue of statutory compliance below, and, in any event, claimant was not prejudiced by the procedure used. In the ordinary case, we would agree with the Department of Employment that this Court should not consider on appeal an issue not raised below. However, an exception exists where the jurisdiction of the tribunal to hear the cause is raised. See In re Wellard, 97 Idaho 197, 541 P.2d 621 (1975); Webster v. Potlatch Forests, Inc., 68 Idaho 1, 187 P.2d 527 (1947). The statutory requirements governing appeals under the Employment Security Act are mandatory and jurisdictional. Fouste v. Department of Employment, 97 Idaho 162, 540 P.2d 1341 (1975); Striebeck v. Employment Security Agency, 83 Idaho 531, 366 P.2d 589 (1961). Therefore, since the second hearings examiner and the Industrial Commission lacked the power to adjudicate the issue of Luskin’s alleged fabrication, the orders of the Industrial Commission are reversed and remanded for further proceedings consistent herewith. See State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967). No costs allowed. -

McFADDEN, J., and SCOGGIN, J. pro tem., concur.

1 . I.C. § 72-1366(j). A benefit claimant shall not be entitled to benefits if it is determined that he has wilfully made a false statement or representation or wilfully failed to report a material fact in order to obtain said benefits for a period of fifty-two (52) weeks from the date of said determination and said claimant shall be liable to repay to the fund any sums received as a result of said false statement, misrepresentation or failure to report a material fact.