                                                                                                 F11- D
                                                                                                    E
                                                                                       COURT' OF APPEALS
                                                                                            UIVIsz h II
                                                                                      2013 AUG 13
                                                                                                  AM 10: 29
    IN THE COURT OF APPEALS OF THE STATE OF W
                                                                                                           TOil

                                         DIVISION II
                                                                                             DE       y

DAN ISBELL,                                                       No. 43230 7 II
                                                                            - -


                              Appellant,

       0,



DEPARTMENT            OF      EMPLOYMENT                    UNPUBLISHED OPINION
SECURITY, STATE OF WASHINGTON,

                                           t.



       PENOYAR, J. — Dan Isbell seeks judicial review of a decision by the Employment

Security Department Commissioner holding him liable for an overpayment of $ 516 in
                                                                          13,

unemployment benefits.. Because the evidence supports the Commissioner's decision that Isbell

failed to accurately report his weekly earnings and is at fault for the overpayment, we affirm.

                                                FACTS


       Isbell has worked as a banquet cook for Alderbrook Resort and Spa since 2005. He earns

15. 5 per hour and works between 15 and 40 hours per week.
  2

       Isbell began submitting the unemployment benefits claims at issue in January 2010.

When he opened his claim, he received a copy of the Department's unemployment benefits

claims kit. The kit explains how to submit a weekly claim for benefits and states that a claimant

must report all gross income earned in a week. The kit adds that earning too much money during

a week may make a claimant ineligible for benefits and that benefits may be denied if a claimant

works full time.


       When Isbell reported his earnings during the weeks at issue, he reported his hourly rate of

15. 5 instead of his weekly gross pay. As a result, the Department paid him his full weekly
  2
                            31 weeks in which he worked fall time and           not   eligible   for any
unemployment benefit for                                                  was
43230 7 II
      - -




benefits. It also paid him full benefits for an additional 32 weeks in which he worked part time

and was eligible for only partial benefits.

        The Department notified Isbell in April 2011 that it was questioning his weekly claims.

The Department eventually determined that Isbell had underreported his earnings for more than a

year and   was   responsible   for the overpayment.      Isbell appealed and appeared in a telephonic

hearing before the Office of Administrative Hearings. He had " o clue"why, when calling in to
                                                             n

report his claim each week, he had reported his hourly rate instead of his weekly earnings.

Administrative Record (AR)at 105. On August 1, 2011, the Administrative Law Judge (ALJ)

issued five initial orders addressing different weeks in 2010 and 2011 in which Isbell had

submitted claims. These orders concluded that Isbell was either fully or partly employed during

the weeks in question, that he was at fault in causing the resulting overpayment of

unemployment benefits, and that he was therefore liable for the overpayment.

        Isbell petitioned for review. Attached to his petition was part of an initial order issued in

2010 in which another ALJ found him without fault but still liable for an overpayment made

during the last week of 2009.

        After reviewing the written record and listening to the audio recording of the

administrative hearing, the Commissioner concluded that Isbell's testimony that he was unaware

he was being overpaid during the 63 weeks at issue in 2010 and 2011 was not credible. The

Commissioner concluded further that Isbell was not eligible for any benefits during 31 weeks

and that he was eligible for only partial benefits during 32 additional weeks. Because Isbell was

at   fault, the Commissioner ordered him        to    repay $13, 16
                                                               5       in overpayments.    After the


Commissioner denied reconsideration, Isbell sought judicial review, and the superior court

affirmed. Isbell now appeals the Commissioner's decision.
                                                     2
43230 7 II
      - -



                                             ANALYSIS


       Isbell argues that the evidence was insufficient to support the Commissioner's decision

that he received $ 516 in unemployment benefits to which he was not entitled and that he was
                 13,

at fault for the overpayment.

        The Washington Administrative Procedure Act (
                                                    WAPA),
                                                         chapter 34. 5 RCW, governs
                                                                   0

judicial review of a final administrative decision of the Employment Security Department

Commissioner.     Tapper v. Emp't Sec. Dep't, Wn. d 397, 402, 858 P. d 494 (1993). The
                                            122 2                  2

WAPA allows a reviewing court to reverse an administrative decision if it is based on an error of

law, if substantial evidence does not support the decision, or if the decision was arbitrary or

capricious. RCW 34. 5. i);v. Emp't Sec. Dep't, Wn. App. 24, 32, 226
                d),
                570(
                   3)((
                   0 e), Smith      ( 155

P. d 263 (2010).
 3

       We review the decision of the Commissioner rather than the underlying decision of the

ALJ and   apply   the WAPA standards    directly   to the record before the agency.    Tapper, 122

Wn. d at 402; Smith, 155 Wn. App. at 32. We consider a Commissioner's decision to be prima
  2

facie correct; the burden of demonstrating invalidity is on the party asserting the invalidity.

Smith, 155 Wn. App. at 32. We review questions of law de novo, giving substantial weight to

the agency's interpretation of the statutes it administers. Smith, 155 Wn. App. at 32. We review

the Commissioner's findings of fact for substantial evidence, but unchallenged findings are

verities. Tapper, 122 Wn. d at 407; Smith, 155 Wn.App. at 32.
                        2

       A person must be         unemployed   to   be   eligible for unemployment ' benefits.   RCW


010(
50. 0.A person is "unemployed"during any week in which he performs no services and
   1
   2 ).

receives no remuneration for services, and during any week of less than.full time work " the
                                                                                       if

remuneration   payable ...   is less than one and one third times the individual's weekly. benefit
                                                      -
                                                   3
43230 7 II
      - -



amount    plus five dollars."    Former RCW        50. 4.2007). Remuneration includes all
                                                   310(
                                                      1
                                                      0 ) (

compensation paid     for   personal   services.   RCW   50. 4. If a claimant meets the
                                                         a).
                                                         320(
                                                            4)(
                                                            0

definition of unemployed"in RCW 50. 4.he is eligible for unemployment benefits, but his
              "                 310,
                                  0

weekly benefit amount is subject to reduction if he earned any wages during the week claimed.

RCW 50. 0.see also WAC 192 -140-
    130(
       2
       2 );                    g)
                               005( )(
                                  5 weekly (
                                           unemployment claim must

include any earnings and the number of hours the claimant worked).

         It is undisputed that Isbell worked for Alderbrook while he was filing the unemployment

claims at issue. Isbell does not challenge the ALPS findings of fact,which the Commissioner

adopted. These findings explain that for 31 weeks in 2010 and 2011, Isbell was fully employed

and ineligible for benefits. The findings set forth the earnings Isbell reported for these weeks
and the amount of money he         actually   earned.    Based on these unchallenged findings, the

Commissioner properly concluded that Isbell was not eligible for unemployment compensation

during the 31 weeks at issue.

         Additional findings explain that Isbell had partial earnings in 32 other weeks during 2010

and 2011.     These unchallenged findings support the Commissioner's conclusion that Isbell's

benefit amount was subject to reduction based on that income.

         Claimants must repay the full amount of an overpayment unless they are granted ' a

waiver.    WAC 192 220- 1).
                   -  017( The                Commissioner may not waive overpayments that are

attributable to the claimant's fault. RCW 50. 0.
                                          190(
                                             2 WAC
                                             2 ); 192 -220-
                                                          a). is
                                                          017(
                                                             3)(
                                                               A claimant

at fault for an overpayment when he (1) paid and kept benefits in an amount greater than he
                                      was

was entitled to receive; ( )provided incorrect information, did not disclose information that
                         2

should have been disclosed, or caused another person to fail to disclose information; and (3)had

notice that the information should have been reported, including notice from written
                                                    9
43230 7 II
      - -




communications such as the Department's unemployment claims kit and directives. WAC 192-

220- 1).
   020(

        The unemployment claims kit specifically informs all claimants that they are required to

report their gross weekly wages. The Department provides this kit to each person who applies

for unemployment benefits, and it provided the kit to Isbell. WAC 192-120 -010( ). person
                                                                              2 Each

who receives the kit is presumed to understand its contents, unless he seeks help in doing so, and

he is responsible for reporting and filing claims in accordance with its instructions. WAC 192-

120- 3);
   001( WAC 192 120- 3), 7).
                -  010( 5), (
                          (

        Isbell argues that he did not receive adequate notice of his mistake in reporting his

earnings, however, because the Department failed to explain that mistake when it issued an

earlier overpayment order in       2010. That order stated that the Department overpaid benefits

during a week when Isbell earned $ 63 and that he was.liable for the overpayment of 185,
                                 251.                                               $
even   though   there   was no   evidence of fault.   Isbell's argument that this order exonerates him

from fault for the overpayment here is without merit, as the 2010 order concerned a different

claim and investigation. Isbell claims that if the Department had done a better job of

communicating during the course of the 2010 claim, he would have understood that he should

not have reported as he did for the time periods involved in the current claim.'But he fails to
explain what the Department could have said or done in administering the 2010 claim that would

have prevented the mistakes he made here. Furthermore, as the Department points out, the 2010

1 We disagree with the Department that this decision is not part of the agency record. Isbell
referred to it during his testimony before the ALJ, and the Commissioner addressed it in his
conclusions of law. AR 106 07,793. The order is part of the agency record and is properly part
                               -
of our analysis here. See Okamoto v. Emp't Sec. Dep't, Wn. App. 490,494, 27 P. d 1203
                                                     107                     3
2001)judicial review of agency action is generally confined to agency record).We do not
        (
consider the accompanying transcript that Isbell provides, however, since that transcript is not
part of the agency record.
                                                      5
43230 7 II
      - -



order should have alerted Isbell to the fact that his unemployment compensation was subject to

reduction based on his gross weekly earnings.

          Having received the Department's unemployment claims kit as well as the 2010 order

explaining that a claimant is responsible for the overpayment when his benefit amount is not

reduced by his earnings, Isbell was at fault for failing to provide accurate information regarding

his earnings during the weeks at issue. The Commissioner determined that Isbell's claim that he

did not know he was being overpaid was not credible, and we defer to that finding. See Smith,

155 Wn. App. at 35 36 (we do not substitute our judgment for that of the agency regarding
                   -

witness    credibility). The Commissioner properly concluded that because Isbell was not free

from fault, he was liable for the $ 516 overpayment.
                                  13,

          Affirmed.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:




          Quinn -Brintnall, J.




          Johanson, A. .
                    J.
                     C


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