Mary E. Townsend, Appellant-Appellant,
vs.
Board of Review et al., Appellees-Appellees
No. 88AP-912
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1989 Ohio App. LEXIS 1173
March 30, 1989, Decided

APPEAL from the Franklin County Court of Common Pleas.
 
COUNSEL
MS. RUTH F. ROSS, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MR. DANA L. LUNICH, for appellee Ohio Bureau of Employment of Services.
JUDGES
REILLY, J., STRAUSBAUGH and BRYANT, JJ., concur.
AUTHOR: REILLY
OPINION
REILLY, J.
This is an appeal from a judgment of the Franklin County Court Court of Common Pleas, including two assignments of error:
"I. The Franklin County Court of Common Pleas erred in upholding the final decision of the Unemployment Compensation Board of Review for that decision is unlawful, unreasonable, and is contrary to the manifest weight of the evidence.
"II. The Franklin County Court of Common Pleas erred in upholding the decision of the Unemployment Compensation Board of Review not to consider the suitability of the alleged refusal of an offer to work."
Appellant was hired as a Data Entry Operator I with the Department of Administrative Services. She was paid $ 6.49 per hour. Appellant was discharged at the end of her probationary period because of her employer's dissatisfaction with her job performance. She filed an application for determination of benefit rights with the Ohio Bureau of Employment Services ("OBES") and became eligible for unemployment compensation benefits commencing September 14, 1986.
OBES notified appellant in July 1987 that it had concluded that she made a fraudulent misrepresentation on her claim for purposes of obtaining employment compensation benefits to which she would not otherwise have been entitled. Appellant was ordered to repay the OBES $ 2,310 for those benefits that she had received for the weeks ending October 25, 1986 through March 21, 1987. This decision was affirmed by the Unemployment Compensation Board of Review and, on appeal, was affirmed by the Franklin County Court of Common Pleas.
Appellant, in her first assignment of error, contends that the decision of the trial court affirming the final decision of the Unemployment Compensation Board of Review was unlawful, unreasonable and contrary to the manifest weight of the evidence.
The standard of review to be applied by the court of common pleas in appeals, pursuant to R.C. 4141.28(O), from decisions of the board of review is stated, in pertinent part:
"* * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * *"
The function of the court of common pleas upon an appeal based on factual grounds is limited to determining whether the board's decision is supported by evidence in the record and that decision may not be reversed simply because the trial court interprets the evidence differently than did the board. See Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159. A decision of the board supported by some competent, credible evidence involviny all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. An order of the court of common pleas based upon the determination of the manifest weight of the evidence, may be reversed by this court only upon a showing that the court of common pleas abused its discretion. See Rohde v. Farmer (1970), 23 Ohio St.2d 82.
The issue before the board was whether appellant had made a fraudulent misrepresentation to obtain benefits for which she was not entitled the week ending October 18, 1987.
R.C. 4141.29(D)(2)(d) states that no individual may be paid unemployment benefits for the duration of his unemployment if the administrator finds that such individual 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. The board found that appellant's application for a determination of benefit rights was allowed for a weekly amount of $ 105 beginning September 14, 1986 and that appellant received benefits totalling $ 2,415 for the week ending October 18, 1986 and continuing through March 21, 1987.
In response to question number eleven on the claim form, which read: "Did you refuse any offers of work during either week claimed?", the appellant responded by checking "no." The board also found that appellant had registered with Capitol Temporary Staffing ("CTS") and had been offered a work assignment which was to begin on October 15, 1986. The board found that she had agreed to take the job and subsequently had failed to report for work. When she was contacted by CTS, appellant stated that she was having problems finding a sitter and that she could make more on unemployment.
The board had before it the following relevant evidence on which it apparently must have relied when determining whether there were some competent credible evidence in support of the essential elements of the case: (1) A weekly claim for benefits for the weeks ending October 11, 1986 and October 18, 1986 on which appellant claimed that she did not refuse any offers of work during either week and on the backside of which she responded that she had contacted the Red Cross and Aetna Life and Casualty for work. The claim card was signed by appellant certifying that the statements on the card were true and correct and that appellant was aware that the law imposes penalties for false statements made on the card; (2) An affidavit written by the deputy of the administrator of the OBES and signed by appellant which stated that appellant called Capitol Temporary Staffing, told them that she would take the job offered, did not go on the assignment after considering the amount of money offered and did not show this offer
of work on her weekly claim because "I called them for the work, they didn't call me."; (3) An affidavit signed by the senior manager of CTS and written by the deputy of the administrator in which the service manager stated that the office offered appellant a position on October 14, 1986, which she agreed to accept but for which she did not report to work stating that she could make more on unemployment.
Thus, the common pleas court did not abuse its discretion when it found that the decision of the board was supported by some competent credible evidence relating to all elements of the charge of fraudulent misrepresentation. The board had before it evidence from affidavits from both CTS and appellant that she was offered employment and did not accept the assignment. Whether appellant contacted CTS or CTS contacted appellant was irrelevant. Appellant, by answering "no" to the question "did you refuse any offers of work?" made a fraudulent misrepresentation.
Appellant contends that she did not refuse work having never committed herself in the beginning. Appellant's affidavit, however, states that she "didn't go on the assignment" after she thought about it. Not appearing for an assignment is a form of refusing work. Moreover, appellant testified at the hearing that she thought if she did not report for work, she really did not work so she did not need to report it. She later stated that she did not accept the Job. Although the evidence is conflicting as to whether appellant accepted the job, it is clear that a job was offered and appellant refused it whether by not accepting it or by not reporting for the assignment.
Appellant contends that the sworn statements of the senior management of CTS were hearsay which, although not subject to the rules of evidence pursuant to R.C. 4141.28(J), were not meant to supplant uncontradicted credible testimony of plaintiff. The record is clear, however, that appellant's testimony was contradicted by CTS as to whether appellant had accepted the work. CTS claims appellant did. Appellant claimed at her hearing that she never called back to say that she would accept. The issue is whether appellant made fraudulent misrepresentations as to a refusal to work. Appellant has not contradicted CTS's assertion that work was offered. Appellant's actions by non-acceptance or by not arriving at the assignment constituted a refusal.
Appellant's first assignment of error is not well-taken. Appellant, in her second assignment of error, contends that the trial court erred in not considering the suitability of the work offered. While it is true that the unemployment compensation order cited R.C. 4141.29(D)(2)(b), refusal of suitable work, its decision rests entirely upon whether appellant refused offered employment, stating that appellant's contention that the work was not suitable was without merit when the fraudulent misrepresentation related only to the refusal of work. R.C. 4141.29(D)(2)(d) states that an individual may not knowingly make a false statement or misrepresentation. The suitability of the work offered was not at issue and was, therefore, not a basis for the Board of Review's decision. The only issue was whether appellant knowingly made a fraudulent misrepresentation as to her refusal.
Appellant's second assignment of error is not well-taken.
Appellant's assignments of error are overruled. The judgment of the Franklin County Court of Common Pleas is affirmed.
REILLY, J., STRAUSBAUGH and BRYANT, JJ., concur.
DISPOSITION
 
Judgment affirmed.