 

In the Missouri Court of Appeals
Eastern District

DIVISION THREE
WILLIAM NORATH, ) No. EDl0344l
)
Appellant, ) Appeal from the Labor and Industrial
) Relations Commission
vs. )
)
DIVISION OF EMPLOYMENT SECURITY, )
)
Respondent. ) Filed: May 31, 2016

OPINI()N

Williani Norath appeals from the Labor and Iiidustrial Relations Commission’s
("Coininission") determination that he was overpaid unemployment benefits and that he willfully
and fraudulently failed to report to the Division of Ernployliieiit Security ("Division") wages he
had earnecl. Because we find that the Commission failed to address certain factual issues
essential to our review, we reverse and remand for proceedings consistent with this opinion.

Factual and Procedural Background

In April 2009, Norath started working for I-Iackrnaiin Lutnber Compaiiy ("Hackniarni").
Norath worked directly with prospective customers of Hacknianli and attempted to generate sales
orders of Hacl<nianii lumber and material. Norath was paid a coinmission by Hacl<iiiaiin in the
event I~Iacktnann made a profit froni the sales generated by Norath. I~Iackmann paid Norath as an

employee and not as an independent contractor.

While Norath was working for Hackmann, Norath was receiving unemployinent benefits
as a result of becoming unemployed from a prior job. The record is unclear when Norath began
receiving those uneniployment benefits and from which job Norath had become tmemployed.

During the time that Norath worked for Hackrnann, Norath continued to submit claims to
the Division, and to collect unemployment benefits from time to time. On the weeks that he was
paid by l-Iackmann, Norath reported to the Division that he was working and reported those
vvages. But on the weeks Norath did not receive any income from Hackmann, he reported that
he was not working and that he had no wages, although he may have been performing tasks in
connection with the prospective Hackmann customers to which he was attempting to generate
sales.

Norath received $320 of unemployment benefits each week he reported that he was not
working. Norath did not receive any unemployment benefits the weeks he reported that he had
been paid because his wages exceeded his weekly benefit amount plus twenty percent. See §
288.030.l.(28)(b)b.‘

The Division conducted an audit and determined that Norath had been overpaid
tlneinployiireiit benefits because he was in fact working when he reported that he was not
working A deputy for the Division concluded that Norath had been overpaid benefits for thirty-
eight weeks during 2013 and 2014 for a total overpayment of $10,029. Because the deputy
found that Norath was overpaid due to fraud, Norath was also assessed a statutory penalty of
$2,507.25, which represents twenty-five percent of the amount owed. Thus, the deputy

determined that Norath owed the Division a total of $12,536.25.

1 All statutory references are to RSMo 2000 unless otherwise indicated.

2

Norath appealed these determinations. A telephonic appeal liearing was held. Norath
appeared pro se and testified at the hearing and an employee for the Division appeared and
testified based on business records. The business records consisted of the Division’s own
records and those records it had obtained from Hackmann and front Norath during its audit.

Norath testified that as part of his job with Hackniann he solicited lumber and rnaterials
orders for Hackinann, and if the customer ultimately bought and paid for the order, he was paid a
percentage of the profits Hackmaiin earned. He testified he had no way of estimating what his
pay would be for each order because he did not know what percentage Hackmann was marking
up the prices or whether Hackinann was going to give any discounts. Norath testified that he
answered "no" to the question of whether he was working each week because he did not believe
that he was doing any work for them until the day the order was delivered and Hackmann was
paid.

The Division witness testified that the deputy took the daily breakdown of wages
provided by Hackmann to determine No1'ath’s wages and any overpayment he had received. She
testified that all wages earned, including cornniissions, had to be reported during the week in
which the work was actually performed. She explained that when a claimant is unsure of the
amount of his or her coinmission, the Divisi0n instructs the claimant to over-report the amount of
wages so as to avoid an overpayment of unemployment benefits. She testified that if the wages
turn out to be less than the claimant reports, then the Division will recalculate the amount owed
and pay the claimant the additional benefits that are due. She did not explain how the deputy

determined Norath’s daily wages from Hackmann’s records.

The appeals tribunal affirmed the deputy’s decisions. Norath appealed the appeals

tribunal’s decisions to the Commission and the Commission affirmed the appeals tribunal. This

appeal follows.

Standard of Review

We review the Cominission’s decision to determine whether it is “supported by
competent and substantial evidence upon the whole record." MO. CONST. art. V, § 18. We must
affirm the Coniinissioii’s decision unless (l) the Commission acted without or in excess of its
povvers; (2) the decision was procured by fraud; (3) the facts found by the Coinmission do not
support the award; or (4) the record lacks sufficient competent evidence to support the award. §
288.210.

Missouri Employlnent Security Law

The purpose of the einploylnent security law is to provide benefits to persons
llneniployed through no fault of their own. Gen_ rtdofors Co)y), v. Buckne)', 49 S.W.?»d 753, 756
(Mo.App.E.D. 2001). Section 288.020 requires us to liberally construe the law to promote
eniploymeiit security by providing for the payment of compensation to individuals in respect to
their unemploynieiit. To this end, the law is libe1'ally construed in favor of compensation and
disqualifying provisions are strictly construed. Anchor Sales & Serv. Co., Inc. v. Div. of E))ip ’f
Seczzrity, 945 S.W..'Zd 66, 70 (Mo.App.W.D. 1997). Nevertheless, it is the claimant’s burden to
establish a right to unemployment benefits Coday v. Div. qfEz)q) ’r Seczzrity, 423 S.W.3d 775,
781 (Mo.banc 2014).

The law applies to individuals who are totally unemployed and partially unemployed §
288.060. An individual is "totally unemployed" in any week during which the individual

performs no services and with respect to which no wages are payable to such individual. §

288.030.1.(28)(@\). An individual is "partially tineinployed” in any week of less than full-time
work if the wages payable to such individual for such week do not equal or exceed the
individual’s weekly benefit amount plus twenty dollars or twenty percent of his or weekly
benefit amount, whichever is greater. § 2S8.(}30.l.(28)(b)b. An eligible insured worker who is
partially unemployed in any week shall be paid for such a week a partial benefit § 288.060.3.
Such partial benefit shall be an amount equal to the difference between the weekly benefit
amount and that part of his or her wages in such week in excess of twenty dollars or twenty
percent of his or her weekly benefit amount, which is greater, § 288.060.3.

'l`he purpose of these provisions is to provide minimal basic support to wage earners
whose wages have been terminated or sharply reduced because of unernployment. Buckner, 49
S.W.3d at 756. Unemployrnent compensation is not intended to provide supplemental income to
persons who continue to receive their full wages through some other means. ]d. An individual
who spends his full time in any endeavor entered in an atternpt to produce an income cannot be
said to be unemployed Bryc/nf v. Lczbor & Imius. Relations Co))u)z ’11, 608 S.W.Zd 524, 529
(Mo.App.W.D. 1980).

Section 288.200 requires the Coinmission to issue a decision and "its reasons therefor."
The decision need not be in any particular form, but must provide for the intelligent review of the
decision and reveal a reasonable basis for the Coinmission’s decision Garden Vieu» Ccu'e Ca‘r.,
Inc. v. Labor & Diclus. Relations Co)):)n ’n, 848 S.W.Zd 603, 608 (Mo.App.E.D. 1993). There
cannot be intelligent review of the decision when the Commission fails to address essential
factual issues. Wooclen v. Di`t». of Er)n)’f Securify, 341 S.W.3d 770, 774 (Mo.App.W.D. 2011).

Wlieii the Commission fails to address essential factual issues, its decision must be reversed and

the cause remanded so that the Commission can resolve the essential issues. Dolgencorp, Irrc. v.
Zatorski, 134 S.W.Sd 813, 820 (Mo.App.W.D. 2004).
Discussion
I. The Commission failed to address Noratll’s employment status.

The Coinmissioir failed to make a finding regarding whether Norath was working for
Hackmann part-tinte, full-time, or not at all during the weeks at issue. In fact, Norath’s
employment status was not addressed at all during the hearing. Nevertheless, the record
demonstrates that Norath had been working for Hackinaiin since April 2009, serviced twenty-nine
different accounts for Hackrnanii, and made over $36,000 in 2013 and over $34,000 in 2014 for
his work for Hackmann.

Unenrployrrieiit income is not intended to provide supplemental income to persons who
receive their full wages through some other means. Bzzckrrer, 49 S.W.3d at 756. Moreover, the
arnount of ttnernployxnent benefits to which a claimant may be entitled to depends in part on
whether the claimant was working full-time, part-time, or not at all. Since the Cominission failed
to make a finding on Noratli’s employment status, the Commission’s decision must be reversed
and remanded so that evidence can be taken and a finding made with regard to whether Norath
was working part-time, full~time, or not all for Hackmann during the weeks at issue. See
DeLong’.s, ]nc. v. Div. of Er)zp ’t Secur'ify, 927 S.W.Zd 877, 880-81 (Mo.App.W.D. 1996) (reversing
and remanding for further proceedings to determine whether the claimant was self-employed and
therefore not entitled to unemployment benefits where claimant was pursuing an independent

accounting practice and this issue of fact was not addressed by the Colnmission).

II. The Colnmission failed to establish when Noratli earned his wages from
Hackmann.

This case inust be reversed and remanded for another reason. if it is determined that
Norath was working part-time or full-time for Hackmann during the time periods at issue, then
the Conunissioii will liave to determine \vhethei‘ Norath was overpaid. In order to make that
determination, the Comrnission must first determine when Norath’s wages were earned, and the
Connnission failed to make a finding regarding this essential factual issue in its decisions.

For purposes of uneniployiiieiit claims, "wages" means all remuneration, payable or pm`d,
for personal services including commissions and bonuses. § 288.036.1 (emphasis added).
Wages reduce unemployment benefits when they are earned, regardless of when they are paid.
Coa'czy, 423 S.W.3d at 780 (citing § 288.036.1). "Payable" has been defined as follows: "A sum
of money is said to be payable when a person is under an obligation to pay it." Bzzckzier, 49
S.W.3d at 757 (citing BLACK’S LAW DICTIONARY 1128 (6th ed. 1990)); Higgins v. Missour'i Div.
QfEnrp’I Secuirfy, 167 S.W.3d 275, 282 (Mo.App.W.D. 2005) (same). Thus, to be "payable” as
used in the context of wages, there must be some legal obligation on the part of the employer to
pay the employee. Bzzcker, 49 S.W.3d at 757.

Here, it is unclear from the record how the Commission calculated Noratli’s wages and
the Coininission failed to make the essential factual finding regarding how it determined
Norath’s wages, i.e., the date the wages became payable. Without this factual deterrnination, we
are unable to rneaningfully review the Commission’s decision, and as a result, its decision must
be reversed and the cause remanded so that the Commission can resolve this issue. Zatorski, 134

S.W.?)d at 820.

On remand, the Conunission should explain its wage calculations. Simply adopting the
deputy’s calculations without a sufficient explanation in the record for how these calculations
were made does not provide for lneaxiiztgftll appellate review. Given that the Comrnission’s
fraud findings were dependent at least in part on its determination that Norath was overpaid
tlnelnployiiieiit benefits, we request the Comlnission to reconsider this issue after making the
requisite factual findings and giving due consideration to any new evidence presented on this
issue. If the Connnission again finds that Norath was overpaid due to fraud, the Cominission
should provide its reasons therefor.

Conelusion
For the reasons stated above, we reverse and remand for proceedings consistent with this

opinion.

 

Robert M. Clayton III, P.J., and
Lawrence E. Mooney, J., concur

