Liu v. R & E Automated Systems – 16.89

Liu v. R & E Automated Systems
Digest No. 16.89

Section 421.28(1)(c)

Cite as: Liu v R & E Automated Sys, unpublished order of Michigan Compensation Appellate Commission, entered October 28, 2015 (Docket No. 14-032454-244075W).

Appeal pending: Yes
Claimant: Shu Liu
Employer: R & E Automated Systems LLC
Docket no.: 14-032454-244075W
Date of decision: October 28, 2015

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HOLDING: The ALJ’s order should be set aside since the Agency’s initial determination set forth a completely theory of ineligibility than was set forth at the hearing.

FACTS: This case was brought before the Appellate Commission pursuant to the claimant’s appeal from an order denying reopening by an ALJ. The claimant requested a rehearing of the ALJ’s amended decision. The ALJ issued an order denying the reopening.

DECISION: The claimant is not ineligible for benefits. The portion of the ALJ’ s decision that found the claimant ineligible for benefits under Section 28(1)(c) of the Act is reversed.

RATIONALE: The ALJ should have allowed rehearing to at least correct the errors in the amended decision. These issues were the reason the Appellate Commission set the order aside. When the initial determination was made, the issue was framed as “Your non-citizen documentation confirming you are lawfully present in the United States expired on September 17, 2014.” At the hearing, the Agency admitted that the actual issue was that the claimant’s work visa had expired. Since this was a completely different issue than that which is set forth in the determination, the decision should be set aside. The Agency cannot set forth one explanation for ineligibility in a determination, then appear at a hearing on appeal of the determination and proceed on an alternate theory of ineligibility. A claimant cannot be expected to foresee and prepare for an issue other than that which the Agency set forth in its determination. This is contrary to basic due process. For these reasons, the Commission reversed the portion of the ALJ’s decision that found the claimant ineligible for benefits under Section 28(1)(c) of the Act. The claimant is not ineligible under Section 28(1)(c).

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 1/6/2016

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Cite as: Ross v. Acrisure P1, L.L.C., Unpublished Opinion of the Court of Appeals of Michigan, Issued Aug. 14, 2014 (Docket no. 315347).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

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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

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

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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

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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).

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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

Gallant v W B Doner Co – 7.33

Gallant v W B Doner Co
Digest no. 7.33

Section 28(1)(c)

Cite as: Gallant v W.B. Doner Co., Oakland Circuit Court, No. 94-476350-AE (January 4, 1995).

Appeal pending: No
Claimant: Jeri Gallant
Employer: W.B. Doner Co.
Docket no.: B92-02016-122380W
Date of decision: January 4, 1995

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CIRCUIT COURT HOLDING: Where claimant placed undue restrictions on where she would work and what type of work she would do, she made herself unavailable within the meaning of the statute.

FACTS: Claimant suffers from agoraphobia (fear of being in open or public places) and advised the MESC that there were limitations on where she would seek or accept employment. She was held ineligible due to her failure to establish unrestricted availability. She had a “comfort zone” of locations she was willing to work in and that zone did not include the Detroit metropolitan area. Furthermore, claimant was qualified to do advertising work but was only seeking work in retail because she wanted to make a career change.

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

RATIONALE: Claimant was desirous of obtaining employment but restricted her availability for certain types of work which she was qualified to perform and restricted the geographical locations to which she was willing to travel. She only wanted to work in communities that were familiar to her. She did not seek advertising work for which she was qualified and limited her job search to certain Detroit suburbs.

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

Anulli v Easy Cut Tool Corp – 7.32

Anulli v Easy Cut Tool Corp
Digest no. 7.32

Section 28(1)(c)

Cite as: Anulli v Easy Cut Tool Corp., Macomb Circuit Court, No. 89-3688-AE (November 8, 1990).

Appeal pending: No
Claimant: Ettore Anulli
Employer: Easy Cut Tool Corporation
Docket no.: B87-15460-107554W
Date of decision: November 8, 1990

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CIRCUIT COURT HOLDING: Where claimant spent time answering phones and giving quotes for 20 hours a week for a company in which he had substantial investment, and also was unable to show he was seeking work, he did not establish he was available for full time work.

FACTS: Claimant had a 51 percent ownership interest in the involved employer. It was decided to dissolve the business. Claimant filed for benefits. While collecting benefits claimant spent 20 hours per week at Vance, Inc., another business in which he had a substantial investment.

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

RATIONALE: Court cites Dwyer v UCC, 321 Mich 178 (1948). Claimant spent substantial amount of time at Vance, Inc. while drawing benefits, although he wasn’t paid. He also failed to demonstrate that he was seeking work and therefore was unable to show a genuine attachment to labor market.

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