Unck v. Department of Workforce Services ( 2015 )

2015 UT App 201THE UTAH COURT OF APPEALS
KEVIN A. UNCK,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20150043-CA
Filed August 13, 2015
Original Proceeding in this Court
Kevin A. Unck, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES STEPHEN L. ROTH JOHN A. PEARCE, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Kevin A. Unck seeks review of the Workforce Appeals
Board’s (the Board) final decision (1) ordering Unck to repay
unemployment benefits because he was not able or available for
full-time work, and (2) imposing a penalty for fraud.
¶2 In Carbon County v. Workforce Appeals Board, 2013 UT 41,
308 P.3d 477, our supreme court set forth the standard of review
for reviewing the Board’s decision concerning a person’s request
for unemployment benefits. See id. ¶ 7. Specifically, such a
determination is reviewed as a mixed question of fact and law
that is more fact-like because “this case ‘does not lend itself to
consistent resolution by a uniform body of appellate precedent.’”
Id. (citation omitted). Accordingly, the Board’s determinations
are entitled to deference because “‘the appellate court would be
in an inferior position to review the “correctness” of the . . .
decision.’” Id. (citation omitted). The Board’s determination of
Unck v. Department of Workforce Services
fraud involves the same fact-like inquiry. Accordingly, both the
Board’s decision concerning Unck’s entitlement to benefits and
the Board’s determination of fraud are entitled to deference.
¶3 Unck filed a claim for unemployment benefits effective
October 13, 2013. He indicated that he was available for full-time
work and was making active searches for work. However, in
January of 2014, Unck applied for Social Security Disability
Benefits (SSDI). In his application he reported that he was unable
to work since October 14, 2013, one day after he applied for
unemployment benefits. He also reported that he continued to
be unable to work. Unck testified that an employee of the Social
Security Administration (the SSA) informed him that his
application for disability benefits would not interfere with his
claims for unemployment benefits.
¶4 At one point Unck briefly obtained employment as a
truck driver but was immediately let go because federal
regulations prohibited anyone who relied on a medication Unck
was taking from being employed as a driver that is required to
cross state lines. While he was receiving unemployment benefits
Unck also applied for paralegal positions. However, Unck
admitted that he probably did not have the skill-set necessary for
such positions. Additionally, after Unck’s unemployment benefits
expired, Unck obtained an opinion from a doctor indicating that
he was unable to work.
¶5 To be eligible for unemployment benefits, the Department
of Workforce Services’ rules require that a claimant must have
no physical or mental health limitations that would preclude
immediate acceptance of full-time work. Utah Admin. Code R994-
403-111c. “The Department and the Board have determined that a
claimant who files an application for SSDI representing to the
SSA that he is disabled [and] unable to work is necessarily
unavailable for full-time work and therefore is disqualified from
20150043-CA 2 2015 UT App 201Unck v. Department of Workforce Services
receiving benefits.” Yarrington v. Department of Workforce Services,
2014, UT App 216, ¶ 5, 335 P.3d 930 (per curiam).
¶6 We cannot say that the Board abused its discretion in
determining that Unck was unable to work. Specifically, Unck
applied for SSDI benefits stating that he was unable to work, he
could not be hired as an interstate driver due to certain
medications he was taking, and immediately after Unck’s
unemployment benefits ended, Unck obtained an opinion from a
doctor stating that Unck did not have the ability to work full-
time. Further, while Unck did apply for paralegal positions, the
Board found that these job searches were not made in good faith
because “the Claimant lacks the skills and ability to work as a
paralegal.” Thus, evidence supports the Board’s determination
concerning Unck’s eligibility for benefits.
¶7 Unck next claims that the Board erred in imposing a
penalty for fraud. To establish fraud, the Department must
establish three elements: materiality, knowledge, and willfulness.
See Utah Admin. Code R994-406-401(1). “Materiality is
established when a claimant makes false statements or fails to
provide accurate information for the purpose of obtaining . . .
any benefit payment to which the claimant is not entitled.” Id.R994-406-401(1)(a)(i)(A). Knowledge is established when the
claimant knew or should have known that the information
submitted to the Department was incorrect or that the claimant
failed to provide required information. See id. R994-406-401(1)(b).
Finally, “[w]illfulness is established when a claimant files claims
or other documents containing false statements, responses or
deliberate omissions.” Id. R994-406-401(1)(c).
¶8 The Board determined that Unck provided false
information by submitting claims stating that he was able to
work. It further determined that Unck should have known that
information was incorrect. Evidence in the record supports these
determinations. Unck submitted claims indicating that he was
20150043-CA 3 2015 UT App 201Unck v. Department of Workforce Services
able to work when he knew that he was unable to work due to
his various ailments. Unck argues that he did not commit fraud
because an individual from the SSA informed him that his
application for disability benefits would not affect his
unemployment benefits. However, in Yarrington we concluded
that statements made by a SSA representative are immaterial to a
determination of whether a person is entitled to unemployment
benefits under Utah law, as any inquiries concerning benefits
should be directed to the Department. See Yarrington, 2014 UT
App 216, ¶ 5. Thus, a claimant cannot reasonably rely on
statements made by persons with no connection to the
Department. Accordingly, evidence also supports the Board’s
determination to impose a fraud penalty against Unck.
¶9 For these reasons we decline to disturb the decision of the
Board.
20150043-CA 4 2015 UT App 201