Ross v. Acrisure P1, LLC – 7.39

Ross v. Acrisure P1, LLC

Digest no. 7.39

Section 28(1)(c)

Cite as: Ross v. Acrisure P1, L.L.C., Unpublished Opinion of the Court of Appeals of Michigan, Issued Aug. 14, 2014 (Docket no. 315347).


Appeal Pending: No

Claimant: Michael T. Ross (Appellee)

Employer: Hill’s Crate Mill (Appellants: UIA)

Docket no. 315347

Date of decision: Aug. 14, 2014

View/download the full decision

Holding: Claimant’s receipt of social security benefits did not preclude him from asserting that he was willing and able to work for purposes of receiving unemployment benefits.

Facts: Claimant’s employer closed in 2009. In December 2009, claimant applied to the Agency for unemployment benefits, and he began to receive those benefits. Although initially claimant’s application for SSDI benefits was denied, claimant successfully appealed that decision on September 21, 2011. On November 29, 2011, claimant informed the Agency that the SSA determined that he was disabled. As a result, on December 20, 2011, the Agency issued a determination informing claimant that he was not eligible for unemployment given his receipt of SSDI benefits.  In February 2012, an administrative law judge upheld the Agency’s denial of benefits and demand for repayment as well as the imposition of penalties. The MCAC affirmed. The circuit court overruled, stating it was “unable to find merit in the [MCAC’s] finding that the claimant’s application for social security disability was inconsistent with his testimony that he was ready and able to work in connection with his application for unemployment benefits.”

Decision: The Agency issued a determination informing claimant that he was not eligible for unemployment given his receipt of SSDI benefits. The MCAC affirmed. The circuit court reversed. The Court of Appeals affirmed the circuit court.

Rationale: There are two broad considerations relevant to determining whether judicial estoppel should prevent an individual from bringing claims under two statutory schemes when there is a potential that the claims involved may be inconsistent. First, courts consider whether there is an inherent conflict between the statutory schemes, such that a negative presumption should apply against the possibility of an individual pursuing both types of claims. See Cleveland,526 U.S. at 802–803 (finding no inherent conflict between receipt of SSDI benefits and a claim under the Americans with Disabilities Act, and rejecting application of a negative presumption). Second, courts consider whether a claimant’s purely factual assertions in the respective contexts genuinely conflict with one another, and whether an individual can explain any apparent contradiction.

There is not an inherent conflict between the statutory schemes such that a finding of disability for purposes of SSDI necessarily precludes the possibility of also receiving unemployment.  Nothing in claimant’s specific factual assertions in each arena which can be considered wholly inconsistent.

Digest author: James C. Robinson (Michigan Law ’16)

Digest updated: 3/15

Chippewa Valley Schools v Bollinger – 7.35

Chippewa Valley Schools v Bollinger
Digest no. 7.35

Section 28(1)(c)

Cite as: Chippewa Valley Schools v Bollinger, Unpublished Opinion of the Macomb County Circuit Court, Issued Nov. 24, 2009 (Docket No. 2009-2460-AE).

Appeal pending: No
Claimant: Susan Bollinger
Employer: Chippewa Valley Schools
Docket no.: 202971W
Date of decision: November 24, 2009

View/download the full decision

HOLDING: A substitute teacher who fails to take steps necessary to continue the same type of employment that she previously held is not “available for work” for the purposes of the Michigan Employment Security Act.

FACTS: Claimant Bollinger worked for Employer Chippewa Valley Schools as a long-term substitute teacher between December 11, 2006 and June 21, 2007. She was informed that the assignment would not be available the following year, and that future substitute teaching assignments would only be available if she registered with Professional Educational Services Group (“PESG”), which claimant did not do. However, claimant did procure a substitute teaching assignment with the school Grosse Pointe South from October 24, 2007 to December 7, 2007.

The UIA issued a redetermination finding that claimant was “available for work,” which Employer appealed. The ALJ held that claimant was only available for work from July 1, 2007 to September 1, 2007. Claimant appealed to the Board of Review, which found that she was available for work between September 2, 2007 and October 20, 2007, as well as from December 9, 2007 to January 12, 2008, or essentially during all of the periods in which she was unemployed.

Employer appealed this decision, arguing that Claimant had been unavailable for work because she had been seeking only a full-time position, rather than the type of long-term substitute position she had held at her prior employer. Claimant argues that she was only required to demonstrate that she was actively seeking full time employment in her area of expertise.

DECISION: The Circuit Court reversed the Board of Review decision, finding Claimant was unavailable for work.

RATIONALE: Because Claimant chose to not register with PESG, she “refused to make herself available for work as a substitute teacher with Chippewa Valley or with any Macomb County School district.” By refusing to register and instead seeking a position as a full-time teacher, she was making herself unavailable to perform the exact type of full-time work that she had been performing prior to her unemployment.

Digest Author: Nick Phillips
Digest Updated: 8/14

Rodzik v Tri-Hospital EMS – 7.37

Rodzik v Tri-Hospital EMS
Digest no. 7.37

Section 28(1)(c)

Cite as: Rodzik v Tri-Hospital EMS, Unpublished Opinion of the St. Clair County Circuit Court, Issued Sept. 7, 2007 (Docket No. 07-000683-AE).

Appeal pending: No
Claimant: Genevieve Rodzik
Employer: Tri-Hospital EMS
Docket no.: 189568
Date of decision: September 7, 2007

View/download the full decision

HOLDING: The Board of Review’s decision that claimant was physically unable to work was not supported by competent, material and substantial evidence on the record.

FACTS: Claimant Rodzik worked for Employer Tri-Hospital EMS for a number of years prior to going on disability leave on April 29, 2005. In August of 2005, Claimant requested additional leave under the Family Medical Leave Act, and she believed that her leave was to extend to January 2006. However, she was placed on “inactive status” on November 4, 2005, and she applied for unemployment benefits on December 2, 2005. She was denied unemployment compensation by the Bureau of Workers & Unemployment Compensation on January 18, 2006, which ruled that she was ineligible due to misconduct. The Bureau made a number of redeterminations finding that she was ineligible, one of which based on her inability to work.

Claimant appealed to the ALJ, which found that Claimant was able to perform full-time work on January 1, 2006, which is when she became eligible to receive benefits. Tri-Hospital appealed to the Board of Review, which found that Claimant had offered conflicting evidence regarding her ability to work in the form of two statements from her doctor. For this reason, the Board of Review found that Claimant did not establish that she was able to work, and determined Claimant was ineligible for benefits.

DECISION: The Circuit Court reversed the decision Board of Review, finding that Claimant was able to work and eligible for benefits beginning January 1, 2006.

RATIONALE: First, the Court determined that the Board of Review was able to properly consider the physician’s statement dated February 15, 2007, as the record indicates that it had been considered by the ALJ, and therefore could have been considered by the Board.

Next was the issue of whether the Board of Review’s decision was supported by competent, material and substantial evidence on the record, and it determined that it was not. The reasoning behind the Board of Review’s determination was allegedly conflicting statements from Claimant’s physician regarding when Claimant was physically able to resume work: one statement was a prospective estimate, while the other was a retrospective report of when Claimant was actually able to resume work. While these dates do not exactly align, there is nothing about an educated guess not precisely accurate which is later revised that indicates that Claimant was not physically able to work at the time later reported. Without this so-called evidence of conflicting information, there is nothing else that supports the Board of Review’s decision to find Claimant ineligible to receive benefits after January 1, 2006.

Digest Author: Nick Phillips
Digest Updated: 8/14

Allessio v Quasarano – 7.34

Allessio v Quasarano
Digest no. 7.34

Section 28(1)(c)

Cite as: Allessio v Quasarano, Macomb Circuit Court, No. 97-1083-AE (August 1, 1997).

Appeal pending: No
Claimant: Marie Allessio
Employer: Laura Quasarano & Nancy Lucido
Docket no.: B96-10527-142392W
Date of decision: August 1, 1997

View/download the full decision

CIRCUIT COURT HOLDING: Where claimant testified before the Referee that she would work a maximum of 30 hours per week and this was consistent with her pre-hearing statements that she did not want full-time work, she did not meet the eligibility requirements of the Act.

FACTS: Claimant quit her job because her employer cut her hours. She told the Agency and the Referee she was able to work 20 – 25 hours per week and no more than 30 hours per week. The Referee reversed a disqualification under Section 29(1)(a) but held claimant ineligible because not available for full-time work. When claimant appealed to the Board of Review, she asserted she misunderstood the question regarding availability and that she was available for full time work.

DECISION: Claimant is ineligible for benefits under Section 28(1)(c).

RATIONALE: Claimant consistently made statements she was not available to work full-time. Therefore, the Board of Review was justified in concluding she was ineligible for benefits under Section 28(1)(c).

Digest Author: Board of Review (original digest here)
Digest Updated: 7/99

Koehler v General Motors Corp – 7.29

Koehler v General Motors Corp
Digest no. 7.29

Sections 28(1)(c), 48

Cite as: Koehler v General Motors Corp, Oakland Circuit Court No. 96-532329-AE (May 6, 1997).

Appeal pending: No
Claimant: Carl Koehler
Employer: General Motors Corporation
Docket no.: B94-10946-134361W and FSC94-00569-134392W
Date of decision: May 6, 1997

View/download the full decision

CIRCUIT COURT HOLDING: Where a claimant worked full-time for a self-owned business he was not unemployed within the meaning of Section 48 of the MES Act. Moreover, where a claimant is preoccupied with developing his own business, putting in hours equivalent to full-time work, he is not available within the meaning of Section 28(1)(c).

FACTS: The claimant was a part-owner of an irrigation company. While collecting unemployment benefits, the claimant worked for his company in excess of 40 hours per week and received distributions from profits. During this period the claimant sought other work but his efforts were infrequent and indifferent. Claimant did not receive a paycheck from this company but did pay personal expenses out of the business’ account.

DECISION: The claimant was not unemployed within the meaning of Section 48 and was not available within the meaning of Section 28(1)(c). Claimant was properly subject to the penalties for fraud.

RATIONALE: Where the claimant is not ready, willing, able and anxious to resume work in industry, his efforts should be considered startup as opposed to self-help. With respect to availability, the claimant’s indifferent job search efforts established he was not truly attached to the labor market and therefore not available within the meaning of Section 28(1)(c). Claimant’s testimony was inconsistent and self-serving and therefore unreliable. In light of his representations to the Agency that he was not employed and his failure to disclose his connection to or responsibilities with his business, the assessment of penalties and sanctions was correct.

Digest Author: Board of Review (original digest here)
Digest Updated: 7/99

Kloha v. Notebaert Construction & MESC – 18.18

Kloha v. Notebaert Constr. & Michigan Employment Security Commission

Digest no. 18.18

Section 28(1)(c), 54(b)

Cite as: Kloha v. Notebaert Construction & MESC, unpublished opinion of the Bay County Circuit Court, issued May 2, 1997 (Docket No. 96-4031-AE-B).

 View/Download the Full Decision

Tribunal: Bay County Circuit Court

Appeal Pending: No

Claimant: Alfred H. Kloha

Employer: Notebaert Construction

Docket no. 96-4031-AE-B

Date of decision: May 2, 1997

Holding: In a fraud case the Agency has the burden of proof to establish that claimant knowingly made a false statement or, with intent to defraud, failed to disclose a material fact in order to obtain unemployment benefits. Under the facts of this case the Agency met their burden to establish that claimant committed fraud when he certified that he was “able and available” for work and collected benefits for weeks he was in the hospital recovering from two different surgeries.

Facts: .

Decision: .

Rationale: .

Digest author: Steve Gray

Digest updated: 5/15

Postema v Grand Rapids Diecraft Inc – 7.30

Postema v Grand Rapids Diecraft Inc
Digest no. 7.30

Sections 28, 54(b)

Cite as: Postema v Grand Rapids Diecraft Inc, Ottawa Circuit Court, No. 95-23141-AA (September 19, 1996).

Appeal pending: No
Claimant: James Postema
Employer: Grand Rapids Diecraft Inc.
Docket no.: B93-06258-127231W
Date of decision: September 19, 1996

View/download the full decision

CIRCUIT COURT HOLDING: Where claimant was primarily engaged in establishing his own business, his mental attitude was not one of genuine attachment to the labor market. Where the claimant only sought work via networking with potential customers and other industry contacts, he was not “seeking work” and was not “available to work.”

FACTS: Claimant was laid off from an executive position in February, 1992. He received regular benefits then extended benefits until December 12, 1992. Claimant started his own tool and die business on August 15 as 51% owner. Corporate status was established week of August 9, 1992. During the first week the business grossed $24,000. After that, expenses exceeded profits. Claimant received no wages. For weeks ending August 29, 1992, and September 5, 1992, claimant failed to report self employment. Thereafter, he reported self employment but zero earnings. For week ending September 12, 1992, claimant reported 70+ hours at his business, but thereafter reported only 20 hours. Claimant sought work primarily through “networking” with contacts who were also potential customers. He never actually filled out any job applications.

DECISION: Claimant ineligible for benefits for period August 9, 1992, through December 12, 1992. Claimant must pay restitution and penalties only for some of the weeks in question as for the most part claimant disclosed his interest in self employment and the nature of his job seeking efforts.

RATIONALE: Claimant’s own testimony demonstrated that he was not diligently searching for employment or truly available for work. “His `mental attitude’ was not that of someone attached to the labor market; rather, it was that of an entrepreneur spending his time and energy trying to make his business successful.”

Digest Author: Board of Review (original digest here)
Digest Updated: 7/99