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DONALD JOHNSON, Appellant
vs.
ADMINISTRATOR, OHIO BUREAU OF EMPLOYMENT SERVICES, ET AL.,
Appellee
NO. 73591
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
1998 Ohio App. LEXIS 2177
May 14, 1998, Date of Announcement of Decision

 


Character of Proceeding: Civil appeal from Court of Common Pleas. Case No. 332969.
 
COUNSEL
For Appellant: GREGG A. AUSTIN, ESQ., Cleveland, Ohio.
For Appellee: BETTY D. MONTGOMERY, Attorney General of Ohio, LAUREL BLUM-MAZOROW, Assistant Attorney General, MICHAEL E. GEORGE, Assistant Attorney General, Cleveland, Ohio.
JUDGES
JAMES M. PORTER, PRESIDING JUDGE, ANN DYKE, JUDGE, JOSEPH J. NAHRA, JUDGE.
AUTHOR: Per Curiam.
OPINION
This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25.
Appellant Donald Johnson appeals from a decision of the Common Pleas Court affirming the decision of the Ohio Bureau of Employment Services (OBES) Review Commission that appellant fraudulently received unemployment benefits at the same time he was collecting workers' compensation benefits. The weekly unemployment benefits were based on his availability to obtain work while his compensation benefits would indicate he was unable to return to work. Appellant claims the record does not support a finding of fraud. We find no error and affirm.
Appellant was employed by Morabito Trucking as a truck driver. Due to the seasonal changes in the employer's business, appellant was normally laid off in the late fall and then recalled in early spring. Appellant typically filed claims for unemployment compensation during these lay-off periods. On October 30, 1992, he was laid off. He applied for unemployment benefits on November 6, 1992.
Appellant was recalled to work for one day on November 20, 1992. On that day, in the scope of his employment, appellant was involved in an automobile accident, where he suffered numerous injuries. As a result of this accident, he filed for workers' compensation benefits for injuries to his neck, left shoulder, left elbow, left thigh, lower back and front teeth. His employer objected to his claim, contesting the extent of the injuries.
Numerous medical reports were submitted to the Bureau of Workers' Compensation that substantiated appellant's injuries. Appellant was examined by several physicians during the time of his injury, including the employer's doctor. These doctors' reports to the Bureau of Workers' Compensation maintained that appellant was temporarily and totally disabled from November 20, 1992 until September 6, 1993.
However, following this accident and continuing through September 4, 1993, appellant continued to file his weekly unemployment claim forms, while at the same time submitting documentation to the Bureau of Workers' Compensation that he was temporarily and totally disabled from working as a truck driver. In each of the weekly unemployment claim forms, appellant was asked the question: "Were you able, available, and seeking work as instructed, and did you keep a written record of these job contacts?" In each of these weekly forms, appellant answered "Yes" in response to this question.
While filing for unemployment benefits, appellant restricted his job search to a position as a truck driver. On June 15, 1993, appellant filed his application for unemployment benefits for a second benefit year. In the Work Search and Employability Questionnaire, appellant was asked "What types of work are you trying to find?" Appellant responded "Truck Driver." He also indicated in this form that he had no disabilities that would influence the type of work he could perform. The questionnaire asked: "List any disabilities (illness, injury, handicap, pregnancy) that may influence the type of work you can perform." Plaintiff answered "-0-."
On July 2, 1993, the Industrial Commission mailed a decision allowing appellant's workers' compensation claim for temporary total disability for November 21, 1992 to December 18, 1992 due to his left lateral elbow epicondylitis, a contusion of the left thigh, disto buccal fracture and damage to his lower right molars. The decision indicated that further temporary total benefits would be considered upon the submission of medical evidence. Based on medical evidence from appellant's physician, Dr. David M. Brill, appellant was found to be temporarily and totally disabled until September 6, 1993.
While appellant returned to work with his employer in the fall of 1993 for two months, he again received temporary and total disability from November 15, 1993 until May 31, 1994. It was later discovered that appellant had two partially dislocated discs in his neck that were pinching nerves.
On January 24, 1995, in two separate decisions that reflect his two separate applications, the OBES Administrator in the initial determination, found that appellant made fraudulent misrepresentations with the object of obtaining unemployment benefits for the weeks ending November 21, 1992 to June 5, 1993 and then from June 12, 1993 through September 4, 1993. For this reason, appellant was ordered to repay the benefits already paid to him and held ineligible for otherwise valid weekly unemployment benefit claims during the period of January 15, 1995 through January 6, 2001 (a period of 85 weeks). Appellant's request for reconsideration by the Administrator was dismissed as being untimely filed.
Appellant then filed a timely appeal to the Review Commission on December 9, 1996, where a hearing was held. In two separate decisions, the hearing officer modified the Administrator's decision on reconsideration. The hearing officer first found that appellant's request for reconsideration was filed timely and allowed his appeal. This determination was based upon appellant's representations that he never received the initial determination. On the merits, the Review Commission hearing officer affirmed the Administrator's decision and found that appellant made fraudulent misrepresentations with the object to obtain unemployment benefits to which he was not entitled. The Review Commission disallowed appellant's request for further appeal on each decision.
Appellant then appealed the Review Commission's decision to the Common Pleas Court. After reviewing the evidence in the record, the Common Pleas Court affirmed the Review Commission's decision, finding that the decision was not unlawful, unreasonable or against the manifest weight of the evidence. From this decision, appellant has filed a timely appeal to this Court.
Appellant's sole assignment of error states as follows:
I. THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE UNEMPLOYMENT BOARD OF REVIEW ON THE ISSUE OF FRAUD WHERE THE RECORD REFLECTS NO RELIABLE, PROBATIVE, OR SUBSTANTIAL EVIDENCE SUPPORTING THE ELEMENTS OF FRAUD.
 
The Ohio Supreme Court in Tzangas, Plakas and Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 653 N.E.2d 1207 found that pursuant to R.C. 4141.28(O), an appellate court may reverse the Review Commission's decision only if it is unlawful, unreasonable or against the manifest weight of the evidence. In Tzangas, the Supreme Court found that this same standard of review applies at each judicial appellate level including the Common Pleas Court, the Court of Appeals and the Ohio Supreme Court. Id. at 697.
Following this standard, a reviewing court is not permitted to make factual findings or decide the credibility of witnesses, as determinations of purely factual questions are primarily reserved for the Review Commission. Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 18, 482 N.E.2d 587; Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 76 N.E.2d 79.
Accordingly, under this standard, we limit our review to a determination of the lawfulness and reasonableness of the Review Commission's decision, in light of the evidence presented to it. We will not reverse that decision if it is supported by competent, credible evidence.
In the instant case, the Review Commission found, pursuant to R.C. 4141.29(D)(2)(d), that appellant made fraudulent representations with the object to obtain unemployment benefits to which he was not entitled for the weeks ending November 21, 1992 through September 4, 1993. R.C. 4141.29(D)(2)(d) states as follows:
(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:
 
* * *
 
(2) For the duration of his unemployment if the administrator finds that:
 
* * *
 
(d) He has knowingly made a false statement or representation or knowingly failed to report any material fact with the object of obtaining benefits to which he is not entitled.
 
If the claimant is found to have knowingly made a false statement or representation with the object of obtaining unemployment benefits to which he was not entitled, R.C. 4141.35 sets forth the penalties that may be invoked. R.C. 4141.35 states in pertinent part:
§ 4141.35 Fraudulent misrepresentations to obtain benefits.
 
(A) If the administrator of the bureau of employment services finds that any fraudulent misrepresentation has been made by an applicant for or a recipient of benefits with the object of obtaining benefits to which he was not entitled, and in addition to any other penalty or forfeiture under this chapter, then the administrator:
 
(1) Shall within four years after the end of the benefit year in which the fraudulent misrepresentation was made reject or cancel such person's entire weekly claim for benefits that was fraudulently claimed, or his entire benefit rights if the misrepresentation was in connection with the filing of his application for determination of benefit rights;
 
(2) Shall by order declare that, for each application for benefit rights and for each weekly claim canceled, such person shall be ineligible for two otherwise valid weekly claims for benefits, claimed within six years subsequent to the discovery of such misrepresentation;
 
(3) Shall by order require that the total amount of benefits rejected or canceled under division (A)(1) of this section be repaid to the bureau of employment services before such person may become eligible for further benefits, and shall withhold such unpaid sums from future benefit payments accruing and otherwise payable to such claimant. * * *
 
R.C. 4141.35(B) sets forth the remedies and penalties to be incurred if the applicant has been "paid benefits to which he was not entitled for reasons other than fraudulent misrepresentation." R.C. 4141.35(B) is not at issue on this appeal.
Therefore, the determination of whether a claimant knowingly made a false statement or representation with the object of obtaining benefits is set forth in R.C. 4141.29(D)(2)(d) and R.C. 4141.35(A). Although the appellant claims we should apply a common law standard of scienter (i.e., specific subjective intent to defraud), we do not agree. In Ridel v. Bd. of Review, 1980 Ohio App. LEXIS 14014 (May 9, 1980), Mahoning App. No. 79 CA. 72, unreported, the court expressed the applicable standard as follows:
It is important at the outset to remember that this is a special statutory action arising under a specific unemployment statute, to wit: 4141.35, Revised Code. As a special statutory proceeding, the common law definition of "fraud" does not apply; rather, for purposes of Section 4141.35, Ohio Revised Code, fraud simply refers to the making of a statement that is false, where the party making the statement does or should know that it is false. * * *
 
Accordingly, the common law standards of fraud applicable in tort do not govern unemployment compensation determinations. This was more recently enunciated in Christie v. Admr., 1996 Ohio App. LEXIS 3875, *8-9 (Sept. 6, 1996), Lake App. No. 95-L-152, unreported as follows:
Whether or not a party engaged in a fraudulent act is a factual determination and, therefore, if there is some credible proof upon which the board's decision was based, that finding may not be disturbed. Further, the burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment compensation law of Ohio. Shannon v. Bureau of Unemp. Comp. (1951), 155 Ohio St. 53, 97 N.E.2d 425, paragraph one of the syllabus; Bays v. Shenango Co. (1990), 53 Ohio St.3d 132, 140, 559 N.E.2d 740; and May v. Bd. of Rev., 1980 Ohio App. LEXIS 14138 (Jan. 9, 1980), Summit App. No. 9406, unreported.
 
The intent to commit fraud may be inferred from intrinsic or extrinsic evidence, as well as from the surrounding circumstances. See Nichols v. Ohio Bur. of Emp. Serv. (Mar. 14, 1989), 1989 Ohio App. LEXIS 914, Jefferson App. No. 87-J-21, unreported.
 
The cases upon which appellant relies for his arguments in defense of his actions either relate to fraud in tort actions or deal with whether a self-employed person is available for work. However, the standards of fraud applicable in tort do not extend to unemployment determinations. Instead, the facts of Riley v. Ohio Bur. of Emp. Serv. (1992), 82 Ohio App.3d 137, 611 N.E.2d 485, more closely parallel this case. There, it was determined that the circumstances surrounding the fraudulent event could be used to determine if a deliberate misrepresentation were entered into which the appellant knew would result in the payment of benefits.
 
In the instant case, plaintiff asserts that no specific evidence of fraudulent intent is contained in the record. However, this determination may be inferred from intrinsic or extrinsic evidence, as well as from the surrounding circumstances.
The Review Commission found that appellant made fraudulent representations with the object to obtain unemployment benefits to which he was not entitled. The Review Commission's decision on this issue was not based on appellant's simultaneously filing for both unemployment compensation benefits and workers' compensation benefits. This finding "stems rather from his certifying on his weekly claims for unemployment benefits that he was able to work, when he was not able to do so." (Ref. Dec. R96-13521, R96-13522 p. 4). Based on the finding that appellant made fraudulent representations to the Administrator, the Review Commission ordered a repayment of the unemployment benefits and assessed a penalty period for otherwise valid weekly claims pursuant to R.C. 4141.35(A).
Under R.C. 4141.29(A)(4), an employee is not entitled to unemployment benefits unless he is "able to work and available for suitable work." This finding depends on the facts and circumstances of each case. Bergstedt v. Steinbacher (1985), 27 Ohio App.3d 93, 499 N.E.2d 902. By definition, the phrase "able to work" means "physical capability to work" while "available for work" means "readiness to work." Hinkle v. Lennox Furnace Co. (1948), 84 Ohio App. 478, 486-487, 83 N.E.2d 903. The Ohio Supreme Court has defined temporary total disability under R.C. 4123.56 as a disability which prevents a worker from returning to his former position of employment. State ex rel. Ramirez v. Industrial Comm. (1982), 69 Ohio St.2d 630, 433 N.E.2d 586. Appellant asserts that a claimant under the workers' compensation system is not required to be totally unable to perform any and all work to qualify for temporary total disability benefits. That the claimant merely must be temporarily unable to perform at least one of the specific
duties of his or her former position. Therefore, the issue before the Review Commission was whether appellant made fraudulent representations when medical documentation showed that he was temporarily and totally disabled from working at his job as a truck driver, while simultaneously representing to the Administrator that he was able to work as a truck driver.
In the instant case, we find that the evidence in the record supports the Review Commission's decision that appellant knowingly made false representations to the Administrator with the object to obtain benefits. Appellant certified on each of his weekly unemployment claim forms from November 21, 1992 to September 4, 1993 that he was able to work as a truck driver. However, at the same time as filing these claims, medical documentation was submitted to the Bureau of Workers' Compensation that he was temporarily totally disabled. Such documentation indicates that appellant suffered health problems that totally restricted his ability to work as a truck driver.
Nevertheless, appellant claims that he was "able to work" within the meaning of R.C. 4141.29(A)(4), as finding of temporary total disability is specific to an employee's previous position and he could work in capacities other than his prior position as a truck driver. However, appellant was only looking for work as a truck driver, which was his last position. In response to the question: "What types of work are you trying to find?" in his Work Search and Employability Questionnaire, appellant only responded "Truck Driver." (Appendix "All"). As appellant was temporarily and totally disabled from his position as a truck driver, he cannot contend that he was "able to work" to secure unemployment benefits as a truck driver. Therefore, the evidence in the record supports the Review Commission's finding that, contrary to his representations to the Administrator, appellant, in fact, was not able to work under R.C. 4141.29(A)(4).
The Review Commission's findings were supported by competent, credible and substantial evidence in the record. We find no error in the trial court's judgment affirming that decision. Appellant's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES M. PORTER, PRESDING JUDGE
ANN DYKE, JUDGE
JOSEPH J. NAHRA, JUDGE
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1).
DISPOSITION
 
Judgment: AFFIRMED.