16. Procedures/Appeals

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Cite as: Liu v R & E Automated Sys, unpublished order of Michigan Compensation Appellate Commission, entered October 28, 2015 (Docket No. 14-032454-244075W).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

07. Eligibility - Able & Available

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, unpublished opinion of the Ottawa Circuit Court, issued September 19, 1996 (Docket No. 95-23141-AA).

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

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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

08. Filing for Benefits, Reporting

Mitchell v BOC Car Assembly – 8.06

Mitchell v BOC Car Assembly
Digest no. 8.06

Section 28

Cite as: Mitchell v BOC Car Assembly, unpublished opinion of the Ingham County Circuit Court, issued March 29, 1990 (Docket No. 89-63386-AE).

Appeal pending: No
Claimant: Gerald Mitchell
Employer: BOC Car Assembly
Docket no.: B88-05151-108575W
Date of decision: March 29, 1990

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CIRCUIT COURT HOLDING: Claimant’s assertion that he was confused about the proper method of filing is not good cause for failure to file a timely claim.

FACTS: Claimant was temporarily laid off for two weeks. He failed to contact the MESC about filing a claim until a week after he returned to work. The claimant said he was confused as to how to file because he believed he would be contacted and/or would be able to file by mail.

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

RATIONALE: It was claimant’s responsibility to get clarification about how to file a claim. While the rules and procedures may be confusing, the Agency could not provide information or clarification if claimant did not seek it.

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

07. Eligibility - Able & Available

Woodall Industries Inc. v. Tracy – 7.38

Woodall Industries Inc. v. Tracy
Digest No. 7.38

Section 421.28

Cite as: Woodall Industries Inc. v. Tracy, unpublished opinion of the Oakland County Circuit Court, issued Sept. 17, 1941 (Docket No. 26150).

Appeal pending: No
Claimant: Marie Tracy
Employer: Woodall Industries, Inc.
Date of decision: September 17, 1941

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HOLDING: The requirement that a claimant be “able to work and available for work” includes the ability to procure transportation to the workplace.

FACTS: Claimant lived twenty-two miles from her place of employment.  Claimant quit voluntarily because she lost access to transportation to the place of employment.  The Claimant re-acquired transportation approximately four months later.  Claimant was denied benefits for the period of time when she was without transportation.

DECISION: As a matter of fact and law, claimant was not “able to work and available to work” during the period when she had no means of transportation.  Claimant was eligible for benefits from the time when she re-acquired transportation that allowed her to travel to her place of employment.

RATIONALE: Eligibility for benefits depends on the ability to travel to the place of employment.*

Digest Author: James Mestichelli, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

*The court used 421.28(c), but that language seems to have been amended. That is why the statutory section cited above is just 421.28.