DLEG Unemployment Insurance Agency v Darden – 18.15

DLEG Unemployment Insurance Agency v Darden
Digest no. 18.15

Section 62(a)

Cite as: DLEG Unemployment Ins Agency v Darden, unpublished opinion of the Oakland County Court, issued October 22, 2004 (Docket No. 04-059568-AE).

Appeal pending: No
Claimant: Yvonne Darden
Employer: Mastanuono & Assoc., Inc.
Docket no.: FSC2004-00036-173164W
Date of decision: October 22, 2004

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CIRCUIT COURT HOLDING: When adjudicating whether the Agency has jurisdiction to issue a determination or redetermination requiring restitution, the 3-year limitation provision of Section 62(a) is applicable, not the 1-year period contained in Section 32a(2).

FACTS: The Agency issued a redetermination November 25, 2003 requiring restitution for benefits improperly paid for 5 weeks ending in November 2002. The Board of Review held that under Section 32a(2) the Agency did not have jurisdiction to issue the redetermination on November 25, 2003 because more than one year had passed since the unemployment checks had been issued and there was no finding of fraud on claimant’s part.

DECISION: The Agency may pursue the recovery of restitution.

RATIONALE: When two statutes cover the same general subject matter, the more specific statute must prevail over the more general statute. MESC v Westphal, 214 Mich App 261 (1995). The 3-year provision of Section 62(a) takes precedence over the 1-year provision of Section 32a(2) because Section 62(a) is more specific.

Digest Author: Board of Review (original digest here)
Digest Updated: 11/04

Krauseneck v Department of the Army – 20.07

Krauseneck v Department of the Army
Digest no. 20.07

Section 20

Cite as: Krauseneck v Dep’t of the Army, unpublished opinion of the Tuscola Circuit Court, issued February 3, 2004 (Docket No. 03-21657-AE).

Appeal pending: No
Claimant: Kyle J. Krauseneck
Employer: Department of the Army
Docket no.: B2002-15115-RO1-166448W
Date of decision: February 3, 2004

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CIRCUIT COURT HOLDING: When a person is honorably discharged from military service before completing 365 days or more of continuous service, and that individual was discharged for being medically unfit, he or she is eligible for benefits. But if the reason for the honorable early discharge had been failure to meet physical standards, i.e. height, weight or physical fitness, then the person would be ineligible for benefits.

FACTS: Claimant was honorably discharged from the Army after serving six months of active duty. The Army discharged claimant for failing to meet “procurement medical fitness standards.” Claimant filed for benefits.

DECISION: Claimant was discharged because of a medical disqualification pursuant to 20 CFR 614.2(2)(ii)(B).

RATIONALE: In cases involving individuals whose credit weeks are based on service in the military, the military determines who is and who is not eligible pursuant to Section 11(h). Pursuant to 20 CFR 614.2(2)(ii)(D) an honorably discharged service member is eligible for benefits for “inaptitude” if the service was continuous for 365 days or more. Pursuant to 20 CFR 614.2(2)(ii)(B), a service member discharged for completing his terms of active service because of “medical disqualification” is eligible for benefits without having to have served 365 days or more. In this case, the claimant underwent a medical examination by a physician, and the physician determined that claimant was medically unfit for further service under the Army’s medical fitness standards. This case does not involve the claimant’s failure to meet the Army’s physical fitness standards or failing to meet the physical height and weight standards. The term ‘Physical Standards’ under 5 USC 8521(a)(1)(B)(ii)(IV) refers to the “basic height, weight and fully bodied entrance requirements plus the basic physical fitness requirements as measured by the Army’s bi-annual APFT and not to the findings by Army medical personnel as to whether [a service member] is medically unfit for continued service.”

Digest Author: Board of Review (original digest here)
Digest Updated: 11/04

Zuber v Ameritech Publishing, Inc – 16.72

Zuber v Ameritech Publishing, Inc
Digest no. 16.72

Section 32a(2)

Cite as: Zuber v Ameritech Publishing Inc, unpublished opinion of the Michigan Employment Security Board of Review, issued January 29, 2004 (Docket No.  2002 BR 171048 (B2003-09495).

Appeal pending: No
Claimant: Kathy L. Zuber
Employer: Ameritech Publishing, Inc.
Docket no.: B2003-09495-171048
Date of decision: January 29, 2004

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BOARD OF REVIEW HOLDING: A protest or appeal is timely if received before midnight of the deadline date.

FACTS: The determination was issued May 6, 2003. Employer faxed its appeal June 5, 2003 at 4:04 p.m. Central time. The Agency issued a redetermination August 27, 2003. Employer appealed the redetermination by fax on September 26, 2003 at 4:13 p.m. Central time. The Agency stamped employer’s appeal as received on September 29, 2003; there was also a stamp indicating the fax was received September 26.

DECISION: The Agency timely received both the employer’s protest of the determination and the employer’s appeal of the redetermination.

RATIONALE: Claimant asserted the protests were untimely because they were submitted after the close of business. Section 32a states in relevant part that a protest of a determination or an appeal of a redetermination must be filed with the Agency “within 30 days after the mailing or personal service.” The Act does not define the word “day.” Rule 105(2) of the Rules of Practice states: “The calendar day on which compliance is required shall be included in the computation of time.” Webster’s Ninth New Collegiate Dictionary, defines “day” in relevant part: “the mean solar day of 24 hours beginning at mean midnight.” We find the word should be given its ordinary meaning.

If the particular protest or appeal is in fact received on or before the date due, then the protest or appeal will be treated as timely. However, the Board is not mandating the Board or Agency to keep fax machines on 24 hours. Parties assume the risks associated with their choice of media. A party attempting a last minute appeal may find the fax number busy or turned off. Attempt does not equal receipt.

Digest Author: Board of Review (original digest here)
Digest Updated:

Motycka v General Motors Corp – 4.32

Motycka v General Motors Corp
Digest no. 4.32

Section 48

Cite as: Motycka v General Motors Corp, 257 Mich App 578 (2003).

Appeal pending: No
Claimant: Marvin Motycka, et al.
Employer: General Motors Corporation
Docket no.: MUL1999-78153-RM1-155516W
Date of decision: July 17, 2003

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COURT OF APPEALS HOLDING: The phrase “leave of absence” as used in Section 48(3) denotes an authorized temporary release from work.

FACTS: Claimants were on a ‘pre-retirement leave’ for a two-year period as articulated in their collective bargaining agreement due to their plant closing. During the ‘pre-retirement leave,’ the claimants received 85% of their wages, retained health benefits, and accrued service credit towards retirement. At the conclusion of the two-year period, the claimants were required to retire.

DECISION: The claimants were not on a leave absence and were “unemployed.”

RATIONALE: “In American Telephone Co v ESC, 376 Mich 271, 279 (1965), our Supreme Court held that the normally accepted meaning of leave of absence was a temporary authorized release from work. GM suggests that American Telephone, supra, is distinguishable from the instant case because it construes a former section of the MES Act dealing with pregnancy leaves that has since been rescinded. However, GM fails to recognize that the Supreme Court reaffirmed the concept that a leave of absence is a temporary release from work in ESC v Vulcan Forging Co, 375 Mich 374, 379 (1965).” Motycka, at 583. The Court in Vulcan,supra, further held that a “leave of absence” is an “authorized temporary release from work for other an vacation purposes.”Motycka, at 583 quoting Vulcan, supra at 379.

Digest Author: Board of Review (original digest here)
Digest Updated:

Dana v American Youth Foundation – 17.20

Dana v American Youth Foundation
Digest no. 17.20

Section 43(u)

Cite as: Dana v American Youth Foundation, 257 Mich App 208 (2003).

Appeal pending: No
Claimant: Candice Dana
Employer: American Youth Foundation
Docket no.: B97-00302-RO1-147335W
Date of decision: June 24, 2003

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COURT OF APPEALS DECISION: Service in an Americorps program is not exempt from coverage under Section 43(o)(v). (See statutory amendment described below.)

FACTS: Claimant served in the AmeriCorps program in a program administered by employer. Claimant received a monthly stipend, health insurance, childcare allowance, and an educational award. When she completed her term of service, claimant applied for unemployment benefits.

RATIONALE: The Michigan Court of Appeals held the claimant’s services to be covered employment under Section 43(o)(v). Under Section 43(o)(v) work-relief and work-training programs are exempt from coverage. The Court held that service in the AmeriCorps program was not a work-relief or work-training program and is not exempt from coverage under Section 43(o)(v).

However, AmeriCorps Service is exempt under Section 43 if the service ended on or after July 23, 2004, the effective date of Act 243 Public Acts 2004. The amendment added a new subsection to Section 43-Section 43(u) which provides:

Except as otherwise provided in section 42(6), the term “employment” does not include any of the following:

(u) Service performed in an Americorps program but only if both of the following conditions are met:

(i) The individual performed the service under a contract or agreement providing for a guaranteed stipend opportunity.

(ii) The individual received the full amount of the guaranteed stipend before the ending date of the contract or agreement.

Digest Author: Board of Review (original digest here)
Digest Updated:  

Lewis v Oakwood Healthcare Corp – 16.68

Lewis v Oakwood Healthcare Corp
Digest no. 16.68

Section 38

Cite as: Lewis v Oakwood Healthcare Corp, unpublished opinion of the Wayne Circuit Court, issued April 29, 2003 (Docket No. 02-243366-AE).

Appeal pending: No
Claimant: Donna M. Lewis
Employer: Oakwood Healthcare Corporation
Docket no.: B2002-10089-RO1-165903W
Date of decision: April 29, 2003

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CIRCUIT COURT HOLDING: An appeal to circuit court must be filed within 30 days of the mailing date of the Board’s decision or order. Attempts to re-litigate an issue from an earlier appeal are barred under the doctrine of res judicata.

FACTS: Claimant appealed a November 15, 2002 Board decision to circuit court. The Board decision held claimant owed restitution under Section 62(a) of the MES Act. The claimant previously appealed the Board’s June 2, 2000 decision holding her disqualified under Section 29(1)(a) to circuit court, and the court affirmed the Board in an order issued March 2, 2001. The claimant did not file a further appeal from that Section 29(1)(a) decision.

DECISION: The Board’s November 15, 2002 decision is affirmed.

RATIONALE: The claimant’s circuit court brief attempted to re-litigate the issue of her disqualification under Section 29(1)(a) and did not address the issue of restitution. The court lacked jurisdiction over the Section 29(1)(a) issue since the claimant had not filed her appeal within 30 days of the mailing date of the decision on that issue pursuant to Section 38(1). The court further noted that claimant’s appeal was barred by the doctrine of res judicata since the issues were identical to her appeal to that court in 2000 and ruled on by the court in an order issued March 2, 2001. Res judicata applies where 1) the former suit was decided on the merits, 2) the issues in the second action were or could have been resolved in the former one, and 3) both actions involve the same parties. In Michigan res judicata is applied broadly. See Energy Reserves v Consumers Power Co, 221 Mich App 210 (1997)Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372 (1999)Sewell v Clean Cut Mgmt, Inc, 463 Mich 569 (2001)Dart v Dart, 460 Mich 573 (1999).

Digest Author: Board of Review
Digest Updated:

C & L Leasing Co v State of Michigan, BW&UC – 20.08

C & L Leasing Co v State of Michigan, BW&UC
Digest no. 20.08

Section 41

Cite as: C & L Leasing Co v State of Michigan, BW&UC, unpublished opinion of the Macomb Circuit Court, issued March 11, 2003 (Docket No. 02-4341-AE).

Appeal pending: No
Claimant: N/A
Employer: C & L Leasing Company
Docket no.: L2001-00056-RO1-2795
Date of decision: March 11, 2003

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CIRCUIT COURT HOLDING: An employer will not be considered to be an “employee leasing company” unless the employer satisfiesall of the requirements of UA Rule 190.

FACTS: Employer’s (C & L) secretary/treasurer testified that employer performed payroll services and provided employees to two other companies, Michigan Awning and Panel Laminations. Ownership of the three companies was intertwined among various family members and in-laws. Employer’s business and Michigan Awning operated out of employer’s secretary/treasurer’s residence. Employer’s secretary/treasurer’s husband and his parents had supervisory control over the employees.

DECISION: Employer is not an employee leasing company. Payroll of workers at the “client” companies is reassigned to the individual companies.

RATIONALE: To be eligible for employee leasing company status, an employer must satisfy all of the requirements of Rule 190. Employer failed to show it met the requirements of Rule 190(2). Employer did not “in fact” hire, promote, reassign, discipline and terminate the leased employees, as required by Rule 190(2)(b). Employer did not hold itself out to the general public as available to provide leasing services, as required by Rule 190(2)(f). Employer’s solicitation letter represented employer as in the business of providing payroll and administrative services.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Waknin v Chamberlain – 20.06

Waknin v Chamberlain
Digest no. 20.06

Cite as: Waknin v Chamberlain, 467 Mich 329 (2002).

Appeal pending: No
Claimant: N/A
Employer: N/A
Docket no.: N/A
Date of decision: November 19, 2002

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SUPREME COURT HOLDING: A criminal conviction after trial is admissible as substantive evidence of conduct at issue in a civil case arising out of the same occurrence.

FACTS: Plaintiff Waknin brought a civil action against defendant Chamberlain for assault and battery. Defendant had been previously convicted of the assault and battery of plaintiff. The circuit court excluded evidence of defendant’s criminal conviction from the civil case on the basis of Wheelock v Eyl, 393 Mich 74 (1974), and MRE 403.

DECISION: The trial court abused its discretion in barring the admission of evidence of the defendant’s conviction by a jury.

RATIONALE: The rule of Wheelock, as it pertains to the use of evidence of a criminal conviction in subsequent civil cases, did not survive the adoption of the Michigan Rules of Evidence. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is not inadmissible simply because it is prejudicial. In every case, each party attempts to introduce evidence that causes prejudice to the other party. It is only when unfair prejudice substantially outweighs the probative value of the evidence that the evidence is excluded. In this case, defendant had an opportunity and an incentive to defend himself in the criminal proceeding. That the defendant was found guilty beyond a reasonable doubt, a standard of proof greater than the preponderance of the evidence in the civil case, is highly probative evidence. Accordingly, the probative value of the evidence of the defendant’s conviction was not substantially outweighed by the danger of unfair prejudice.

The Court expressed no opinion regarding whether pleas of nolo contendere are admissible as substantive evidence in subsequent civil proceedings.

Editor’s Note: Also see Section 14 of the MES Act which indicates, in part, that decisions of a court of record which have become final “may be introduced into any proceeding involving a claim for benefits and the facts therein found and the . . .decisions therein made shall be conclusive unless substantial evidence to the contrary is introduced by or on behalf of the claimant.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 1/04

Pinecrest Custom Homes v Meines – 16.70

Pinecrest Custom Homes v Meines
Digest no. 16.70

Section 32a

Cite as: Pinecrest Custom Homes v Meines, unpublished opinion of the Kent Circuit Court, issued October 8, 2002 (Docket No. 02-03823-AE).

Appeal pending: No
Claimant: Janis Meines
Employer: Pinecrest Custom Homes
Docket no.: B2001-14696-RM1-161795
Date of decision: October 8, 2002

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CIRCUIT COURT HOLDING: Detrimental reliance on incorrect advice from a representative of the Agency constitutes “good cause” for filing a late protest.

FACTS: Claimant quit her job due to abusive conduct by the husband of the owner. Claimant filed for benefits. A determination held her disqualified for benefits under Section 29(1)(a). Claimant telephoned the claims examiner who issued the determination to ask what would be required to reverse the determination. Claimant testified the claims examiner told her (incorrectly) she would have to “prove with medical records or police reports that she had been ‘physically injured.’” Claimant did not file a timely protest of the determination because she did not have such evidence. A few weeks later, claimant met the person who had replaced her. That person also quit due to abusive conduct from employer’s husband and was seeking benefits. She told claimant other employees had quit for the same reason and had received benefits. Claimant then filed an untimely protest.

DECISION: The claimant established good cause for her late protest.

RATIONALE: “What justifies considering the late filing of a new, additional or reopened claim seems intuitively to justify considering the late protest of the initial determination of a claim.” That definition of “good cause” is “a justifiable reason, determined in accordance with the standard of conduct expected of an individual acting as a reasonable person in light of all the circumstances, that prevented a timely filing or reporting to file….” The statement of a “representative of the Unemployment Agency that a protest could succeed only with evidence that one does not have compels the conclusion that there is no point to a protest; reasonable people do not do the futile. [I]t is not reasonable to expect lay-people to ignore whom the government holds out to be an expert.” Claimant “had good cause for not protesting until she learned that she had been misled.”

Digest Author: Board of Review (original digest here)
Digest Updated:

Canto v McLaren Regional Medical Center – 17.19

Canto v McLaren Regional Medical Center
Digest no. 17.19

Section 43

Cite as: Canto v McLaren Regional Medical Center, unpublished opinion of the St Clair Circuit Court, issued July 23, 2002 (Docket No. 01-00382-AE).

Appeal pending: No*
Claimant: Emmanuel Canto
Employer: McLaren Regional Medical Center
Docket no.: L1999-00047-2736
Date of decision: July 23, 2002

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CIRCUIT COURT HOLDING: Participation in an accredited medical residency program is excluded from the MES Act definition of “employment” pursuant to Sections 43(o)(5) and 43(q)(2).

FACTS: Claimant is a doctor who completed employer’s 3-year family practice residency program. The residency program includes didactic work, classroom work, lectures and supervised clinical experience. The residency program was created to develop resident’s clinical skills and train physicians. Residents cannot bill for patient care; Medicare/Medicaid compensates the hospital separately. Residents’ stipends are reimbursed by federal sources. There was no relation between the number of hours worked and the amount claimant was paid. There is no expectation of employment after completion of the residency.

DECISION: The services claimant rendered are exempt from coverage under Sections 43(o)(5) and 43(q)(2).

RATIONALE: Section 43(o)(5) excludes from employment those individuals who are participants in a work-training program that is assisted or financed in whole or in part by a federal agency. Residency programs are “work-training” programs as they impart clinical skills to physicians, which allow them to properly perform their work. These programs are federally funded. Section 43(q)(2) excludes from the definition of employment, “services performed by a college student of any age, but only when the student’s employment is a formal and accredited part of the regular curriculum of the school.” In this matter, claimant was involved in a program that was part of an accredited program of instruction.

*Note an appeal in another case involving this same issue is currently pending at the Michigan Court of Appeals: Bureau of Worker’s Unemployment Compensation v Detroit Medical Center, Mich App Case No. 252777-D

Digest Author: Board of Review (original digest here)
Digest Updated: