Bixler v. Concentra Health Services, UIA – 12.142

Bixler v. Concentra Health Services, UIA
Digest No. 12.142

Sections 421.29(1)(m) and 421.29(1)(b)

Cite as: Bixler v. Concentra Health Services, Inc., Wayne Circuit Court, No. 11-009212-AE

Appeal pending: No
Claimant: Barbara Bixler
Employer: Concentra Health Services, Inc.
Docket no.: 11-009212-AE
Date of decision: January 24, 2012

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HOLDING: The burden of proof on the employer to prove the the Claimant ineligible under 29(1) prevents the ALJ from “questioning the [Claimant] into proving the case against her, effectively forcing her to carry the burden of proof against herself.” Although the ALJ has “a duty to decide benefits regardless of the action or inaction of the employer”, and may independently question witnesses, such questioning must not be “used as a tool to circumvent the requirement that the employer carry the burden of proof”.

FACTS: Claimant smoked a small amount of marijuana for the first time in 35 years. One and a half days later, she was pulled for a random drug screening at her job as a receptionist for Concentra. She failed the drug test and was subsequently terminated. Concentra fired her over the phone and she stated at trial that the reason given was the positive drug test. She then received 25 of 26 available unemployment insurance payments before the UIA sued to declare her ineligible and for restitution totaling $7,025. Concentra failed to appear at the hearing. At the ALJ level, the employer’s side offered no evidence of the positive drug test. During questioning, however, after objections, Claimant answered that she remembered seeing the positive test, and that she assumed, logically, that it was caused by her drug use two days prior. Relying on this evidence, the ALJ found her ineligible, but ruled that UIA was not entitled to restitution because it had been notified of her potential ineligibility five months before it ceased to pay her benefits. On appeal, the Board of Review upheld Claimant’s ineligibility but reversed on the restitution because the agency’s continuance of payments was due to their high volume at that time and not due to an administrative error. Claimant appealed to the Circuit Court of Wayne County.

DECISION: The Board of Review decision is reversed and Claimant is entitled to unemployment insurance benefits.

RATIONALE: The burden of proof on the employer to demonstrate a 29(1) defense cannot be circumvented by the special rule allowing ALJs to question witnesses and to make eligibility determinations in the absence of employer intervention. Thus the burden of proof rule trumps the special ALJ questioning rule. The alternative outcome would have been that the rule allowing ALJs to independently question Claimants overrides the burden of proof rule. Under this hierarchy of rules, however, “the employer would never have to appear in a drug test case”. The temptation to make the witness admit to her drug use may be motivated by a legitimate concern for the public interest, since the people have decided, via the legislature that those fired for drug use are ineligible for benefits. However, the same public also decided that the burden of demonstrating 29(1) defenses falls on the employer.

The court also noted that the burden shifting is especially “troublesome when it comes to ascertaining whether the test was administered in discriminatory manner”. Since the employer made no appearance, and thus gave no account as to how the test was administered, the Claimant had no means to challenge the test as discriminatory. Note that the test being non-discriminatory is a condition of the employer’s 29(1)(m) defense, not a counter attack available to claimants. Thus a drug tests non-discriminatory status is subject to the employer’s burden of proof. The ALJ may have assumed that, because we know that the Claimant in this case had, in fact, used drugs, the test couldn’t have been discriminatory, because it was accurate. Since part of the administration of drug tests is the selection of employees to take the test, accuracy of the result is not sufficient to show that the test was not administered discriminatorily. Again, without the employer offering some account of the test’s administration, the Claimant had no real opportunity to challenge it on those grounds. As the court stated “She could not cross examine an empty chair.”

Digest Author: James Fahringer, Michigan Law, Class of 2018
Digest Updated: 3/1/2016

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, Oakland County Court, No. 04-059568-AE (October 22, 2004).

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

MESC v Westphal – 18.13

MESC v Westphal
Digest no. 18.13

Section 62(a)

Cite as: MESC v Westphal, 214 Mich App 261 (1995).

Appeal pending: No
Claimants: Larry A. Westphal & Steve G. Bussell
Employer: Mueller Brass Co.
Docket no.: B92-21862-122898W
Date of decision: November 14, 1995

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HOLDING: Where the Agency has issued a determination requiring restitution within three years of the date of a claimant’s receipt of improperly paid benefits, the Agency must file a civil suit to recover those benefits within three years of the date of the determination requiring restitution.

FACTS: Claimant Westphal received benefits through April 27, 1985. On January 29, 1986, the Agency determined those benefits were improperly paid. The claimant did not protest. The Agency filed its civil action for restitution on May 9, 1991. Because the Agency filed its claim more than three years after the date of the determination requiring restitution, the circuit court granted Westphal’s motion for summary disposition. Claimant Bussell’s experience was similar.

DECISION: The Agency could not recover restitution.

RATIONALE: The statute unambiguously states that the limitation period for the recovery of improperly paid unemployment benefits is three years from the date of receipt of benefits unless one of three exceptions exists. See Section 62(a). The third enumerated exception applied here since in each instance the MESC made formal determinations requiring restitution within three years of the claimant’s receipt of benefits. In Section 62(a), the “last antecedent” before the three qualifying exceptions is the date of accrual of the cause of action. Accordingly, the qualifying exceptions refer solely to the date of accrual and leave the three year limitations period intact.

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

Burch v Chapel Hill Cemetery Development – 18.08

Burch v Chapel Hill Cemetery Development
Digest no. 18.08

Section 62

Cite as: Burch v Chapel Hill Cemetery Dev, No. 88-61881-AE, Ingham Circuit Court (November 26, 1990).

Appeal pending: No
Claimant: Ronald Burch
Employer: Chapel Hill Cemetery Development
Docket no.: B87 10225 106685W
Date of decision: November 26, 1990

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CIRCUIT COURT HOLDING: When a claimant knew or should have known he was not entitled to the benefits he was receiving the claimant cannot claim administrative clerical error as a basis for restitution waiver.

FACTS: The claimant had been issued a determination which indicated he was entitled to 26 weeks of unemployment benefits. Because of a computer error, the claimant received 45 weeks of benefits. When the Commission discovered claimant had received an additional 19 weeks worth of benefits it sought restitution. The claimant asserted he should be exempt from the restitution requirement because he had received the additional benefits as the result of an administrative clerical error.

DECISION: The claimant was required to make restitution.

RATIONALE: Section 62(a) of the MES Act provides that the Commission may waive restitution. As one of its internal guidelines the Commission provides that it will waive restitution for payment resulting from an administrative clerical error.

While in the instant matter a clerical error had been made it was found that the claimant had actual knowledge he was only supposed to receive 26 weeks of benefits and therefore could not claim to be exempt from the restitution requirement for the remaining 19 weeks.

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Cox v Tri-County Labor Agency – 4.20

Cox v Tri-County Labor Agency
Digest no. 4.20

Section 48, 62

Cite as: Cox v Tri-County Labor Agency, No. 85-1861AE, Calhoun Circuit Court (March 13, 1986).

Appeal pending: No
Claimant: Wayne O. Cox
Employer: Tri-County Labor Agency
Docket no.: B84 06074 97817W, 97818W
Date of decision: March 13, 1986.

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CIRCUIT COURT HOLDING: Receipt of a lump sum settlement of an arbitration award constituted back pay and hence remuneration within the meaning of the MES Act.

FACTS: The claimant was employed as an executive director by the employer until his termination. After his termination an arbitrator issued a decision which reinstated the claimant and ordered the employer to pay the claimant back pay. Shortly after the claimant was reinstated the employer again terminated him. At this point the claimant and the employer negotiated an agreement whereby which the employer paid the claimant a sum in satisfaction of the arbitration award. Claimant was paid unemployment benefits while the arbitration was pending. After claimant received the arbitration settlement the MESC sought restitution of the benefits received.

DECISION: The sum received by the claimant in settlement of the arbitration award included back pay. Thus it constituted remuneration within the meaning of the MES Act and therefore claimant was ineligible for benefits during the relevant period. Restitution was properly ordered.

RATIONALE: The arbitration award specifically indicated the employer would both reinstate the claimant and pay him back wages. The back wages payable to the claimant would have been remuneration. The claimant’s receipt of a sum in lieu of reinstatement and back wages must also be considered remuneration since it was received in satisfaction of the same.

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Buxton v Chrysler Corp – 18.02

Buxton v Chrysler Corp
Digest no. 18.02

Section 62(a)

Cite as: Buxton v Chrysler Corp, No. 68053 (Mich App June 1, 1984).

Appeal pending: No
Claimant: Clark W. Buxton
Employer: Chrysler Corporation
Docket no.: B74 12158 49663
Date of decision: June 1, 1984

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COURT OF APPEALS HOLDING: The provision of finality in Section 32(b) “applies only to whether the employer is entitled to a credit to its rating account and not to benefits paid to the claimant.”

FACTS: The claimant was paid benefits as a result of the employer’s late response to the Commission’s request for information to determine the claimant’s entitlement to unemployment benefits. The claimant was ordered to make restitution pursuant to Section 62(a) for the benefits paid prior to the employer’s response.

DECISION: “The benefits paid claimant were properly subject to restitution pursuant to Section 62(a).”

RATIONALE: The Court affirmed the decision of the Circuit Court which held:

“The language of Section 32(b) is specifically limited to the ‘non-complying employer’. Had the legislature meant for this section to apply to benefits paid to a claimant, it would have so stated, as it has done in other sections of the act, i.e., Sections 62(a) and 32(d). The Court is of the opinion that Section 32(b) applies only to whether the employer is entitled to a credit to its rating account where benefits were paid as a result of its untimely submission of required information. Section 20(a) reinforces and compliments Section 32(b).”

“Accordingly, the decision of the MESC Appeal Board … is hereby AFFIRMED.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Knight v Holland Hitch Co – 18.04

Knight v Holland Hitch Co
Digest no. 18.04

Section 62(a)

Cite as: Knight v Holland Hitch Co, No. 77-4046 CZ, Ottawa Circuit Court (November 4, 1983).

Appeal pending: No
Claimant: Howard V. Knight
Employer: Holland Hitch Company
Docket no.: B77 19822 68271

Date of decision: November 4, 1983

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CIRCUIT COURT HOLDING: Where a claimant is awarded back pay by an arbitrator for a contested discharge and he is paid full back pay minus the unemployment insurance benefits he earlier received from the MESC, the employer is liable for restitution to the MESC.

FACTS: The claimant grieved his discharge. He received an arbitration award of full back pay for all lost time less unemployment compensation received.

DECISION: The employer is liable to MESC for the unemployment compensation deducted from the back pay awarded claimant.

RATIONALE: “A review of the language of the Michigan Employment Security Act makes it clear that the legislative purposes giving rise to the act did not include permitting double recovery by a claimant-employee (later determined to have been wrongfully discharged and entitled to back pay) by permitting him to retain unemployment benefits and full back pay for the same period. Neither do such legislative purposes support the enrichment of an employer who wrongfully discharges an employee, at the expense of the state fund and other employers, by permitting the employer to retain unemployment benefits deducted from back wages paid to the employee after reinstatement.

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91