                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1301

                               Christine M. Berglund,
                                       Relator,

                                         vs.

                            Kozlak’s Royal Oak Rest Inc.,
                                    Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                Filed June 15, 2015
                                     Reversed
                                  Hooten, Judge

               Department of Employment and Economic Development
                               File No. 32482423-3

Laura Melnick, Samantha Clawson, Law Offices of Southern Minnesota Regional Legal
Services, Inc., St. Paul, Minnesota (for relator)

Kozlak’s Royal Oak Restaurant, Inc., Shoreview, Minnesota (respondent employer)

Lee B. Nelson, Munazza Humayun, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

      Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HOOTEN, Judge

       Relator challenges the determination by an unemployment law judge (ULJ) that

she is ineligible for unemployment benefits because she was discharged for employment

misconduct, arguing that: (1) the ULJ’s findings of fact are not supported by substantial

evidence in the record; and (2) the ULJ erred by applying an incorrect legal standard to

determine whether relator made consistent efforts to control her chemical dependency.

We reverse.

                                        FACTS

       Relator Christine M. Berglund was an employee of respondent Kozlak’s Royal

Oak Rest Inc. (Kozlak’s) from July 2000 until January 25, 2014. After Berglund’s

employment ended, she applied for unemployment benefits with respondent Minnesota

Department of Employment and Economic Development (DEED).                DEED initially

determined that she was ineligible for unemployment benefits because she was

discharged for employment misconduct. Berglund appealed this determination, and a

ULJ held a telephonic hearing at which Berglund and her former manager, L.S., testified

to the following.

       Throughout her 13-year employment with Kozlak’s restaurant, Berglund worked

part-time as a server.   On January 25, 2014, Berglund reported to work under the

influence of alcohol. At an employee meeting, Berglund interrupted L.S. multiple times.

Later that evening, two employees came up to L.S. and told her that they suspected that

Berglund was intoxicated. L.S. observed Berglund “stumbling in the kitchen,” so she


                                           2
took Berglund aside and confronted her about her intoxication.         When L.S. asked

Berglund for her keys, Berglund “got belligerent.” She “started yelling and screaming”

at L.S., using profanity within earshot of customers. An employee “grabbed [Berglund]

lightly by the forearm” to try to get her into the kitchen, and Berglund “started swinging

punches” at the employee. L.S. believed that Berglund struck the employee on the arm.

L.S. then called the police. Police officers eventually arrived and drove Berglund home.

      L.S. wrote up an “Employee Termination Notice” that night, which stated that the

date of termination was January 25, 2014. The “[r]eason for termination” listed on the

form was “[i]nsubordination.” L.S. provided a detailed description of the incident on the

form. Berglund testified that her memory of the incident was not very detailed. She

admitted that she was “quite intoxicated,” which was why she did not “really remember

exactly how everything happened.” L.S. testified that a provision in Kozlak’s employee

handbook provided that, if an employee came to work under the influence of alcohol, it

was grounds for “immediate dismissal.”          Berglund testified that she received the

handbook back in 2000 and was aware of this provision.

      The next morning, Berglund called Kozlak’s because “she wanted to know if she

was fired.” L.S. was not on duty that morning, but Berglund talked to another manager.

L.S. testified that the manager told Berglund to call back later when L.S. was working.

L.S. testified that Berglund never called back or came in to discuss the incident.

Berglund testified that she did not call L.S. back and never called anyone at Kozlak’s to

discuss her employment because she felt “really embarrassed” about the incident and she

“assumed that [she had] been fired.”


                                            3
        When the ULJ asked Berglund, “Did you quit or were you discharged[?]”

Berglund stated that she was discharged. She noted, however, that nobody from Kozlak’s

ever told her that she was discharged.     L.S. testified that Berglund was discharged

because she was “drunk and disorderly” during work hours. However, L.S. testified that

nobody ever told Berglund she was discharged. L.S. also testified: “I guess I assume

when you come in [to work intoxicated], you start fighting with employees . . . I guess I

just assumed she knew [she was fired], and she never called me back and asked the

question . . . .”

        Berglund testified that her conduct on January 25 was a consequence of her

alcohol dependency.     In a brief letter dated May 5, 2014, Berglund’s primary care

physician stated that Berglund had “been struggling with chemical dependency of alcohol

formally diagnosed in July 2012” and that she was “prescribed a treatment program at

that time.”     Consistent with this letter, Berglund testified that her physician first

diagnosed her as chemically dependent on alcohol in July 2012. But, Berglund testified

that she did not think that she was prescribed “a treatment program” at that time by her

physician to address her chemical dependency. Berglund never told Kozlak’s that she

was chemically dependent or asked for a leave of absence in order to enter treatment.

There is no evidence in the record that, prior to the January 2014 incident, Berglund’s

chemical-dependency issues interfered with her ability to work and, in fact, her

supervisor testified that she was unaware that Berglund had a chronic chemical-

dependency problem.




                                            4
       Additional medical evidence was introduced into the record regarding Berglund’s

efforts to control her chemical dependency. On August 26, 2013, Berglund saw her

physician for her annual physical examination. The clinical notes from this visit listed

alcohol abuse as one of Berglund’s assessed problems. The treatment plan from this visit

stated, in relevant part: “[Counseling] to help with all of your new adjustments and

drinking.” After the August 2013 visit, Berglund began seeing a psychologist for her

alcohol dependency. Berglund received counseling from her psychologist a total of nine

times between August 2013 and the January 2014 incident. The therapy focused on

cognitive and behavioral issues, such as Berglund understanding how she could stop

drinking, understanding why she was drinking, finding a safe way to quit drinking,

finding other activities to replace drinking, and finding social supports to help her stay

sober. Berglund testified that her psychologist had advised her that she should not quit

drinking immediately but, in order to avoid the harsh effects of detoxification, she should

“try and wind down” her drinking. During the course of Berglund’s treatment with her

psychologist, there was no indication that her psychologist or any other medical provider

recommended that she attend a formal inpatient or outpatient chemical-dependency

treatment program or Alcoholics Anonymous.

       Berglund testified that, during the five months that she treated with her

psychologist, she was able to decrease the level of her consumption of alcohol. She

acknowledged that she “was not totally abstinent,” but stated that she “was doing [her]

best to refrain from drinking” every day. Vodka was her drink of choice. For a few

weeks in December 2013, she tried switching from vodka to beer in order to “try to get


                                            5
[herself] off'” vodka. She stated that, prior to August 2013, she was consuming two 1.75-

liter bottles of vodka every five to six days. After August 2013, she was consuming

roughly four to five drinks per day.

       The ULJ issued an order denying Berglund unemployment benefits on the basis

that she was discharged due to employment misconduct, such misconduct was a

consequence of her chemical dependency, and she failed to make consistent efforts to

control her chemical dependency. The ULJ found that, during the time that Berglund was

treated by her psychologist, she increased, rather than decreased, her consumption of

alcohol, but failed to tell her psychologist of this increase. The ULJ rejected Berglund’s

testimony that none of her doctors had recommended that she attend a formal chemical-

dependency treatment program, claiming that such testimony was inconsistent with the

evidence received at the hearing. While the ULJ found that Berglund made “some

efforts” to control her chemical dependency, she concluded that she did not make

“consistent efforts” to do so. The ULJ found that her efforts to control her chemical

dependency “were inconsistent without evidence of any period of cessation in [her]

consumption of alcohol” and that her level of chemical abuse never “reached any

acceptable level or ceased being a problem at any time.”

       On reconsideration, the ULJ affirmed her decision.          The ULJ found that

Berglund’s claim that she made consistent efforts to control her chemical dependency

was “not plausible.”     The ULJ pointed out that there was no evidence that her

psychologist had “knowledge, education and training in chemical dependency treatment”

or that she “developed a comprehensive plan to treat Berglund’s physical addiction as


                                            6
well [as her] psychological problems.” The ULJ emphasized the limitations and lack of

detail in the psychologist’s letters about Berglund’s alleged consistent efforts. The ULJ

now found that Berglund failed to show that she made “any effort” to cease her

consumption of alcohol. This certiorari appeal followed.

                                    DECISION

      The purpose of chapter 268 is to assist those who are unemployed through no fault

of their own. Minn. Stat. § 268.03, subd. 1 (2014). The chapter is remedial in nature and

must be applied in favor of awarding benefits, and any provision precluding receipt of

benefits must be narrowly construed. Minn. Stat. § 268.031, subd. 2 (2014). “An

applicant’s entitlement to unemployment benefits must be determined based upon [the]

information available without regard to a burden of proof.” Minn. Stat. § 268.069, subd.

2 (2014).

      We review a ULJ’s decision to determine whether a relator’s substantial rights

have been prejudiced by legal errors, findings or conclusions not supported by substantial

evidence, or a decision that is arbitrary and capricious. Minn. Stat. § 268.105, subd.

7(d)(3)–(6) (2014). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Carter v. Olmsted Cnty. Hous.

& Redev. Auth., 574 N.W.2d 725, 730 (Minn. App. 1998) (quotation omitted).

“Substantial evidence means more than a scintilla of evidence, ‘some’ evidence, or ‘any’

evidence.” Id. “An appellate court will exercise its own independent judgment in

analyzing whether [a relator] is entitled to unemployment benefits as a matter of law.”




                                            7
Irvine v. St. John’s Lutheran Church of Mound, 779 N.W.2d 101, 103 (Minn. App.

2010).

         “Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,

796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted).             Whether an employee

committed a particular act is a question of fact viewed in the light most favorable to the

ULJ’s decision and affirmed if supported by substantial evidence. Skarhus v. Davanni’s

Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But, we review de novo the legal

question of whether the particular act committed by the employee constitutes

employment misconduct and whether an exception applies. See id.

         In general, an employee who is discharged by an employer for employment

misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subds. 4, 6

(2014).    “Employment misconduct means any intentional, negligent, or indifferent

conduct, on the job or off the job[,] that displays clearly: (1) a serious violation of the

standards of behavior the employer has the right to reasonably expect of the employee; or

(2) a substantial lack of concern for the employment.” Id., subd. 6(a). Notwithstanding

this general definition, employment misconduct does not include “conduct that was a

consequence of the [relator’s] chemical dependency, unless the [relator] was previously

diagnosed chemically dependent or had treatment for chemical dependency, and since

that diagnosis or treatment has failed to make consistent efforts to control the chemical




                                            8
dependency.” Id., subd. 6(b)(9). Berglund claims that she falls under this chemical-

dependency exception to the employment-misconduct rule.1

      For Berglund to meet the chemical-dependency exception under the statute, the

evidence must show that: (1) she was discharged because of employment misconduct;

(2) the employment misconduct was a consequence of her chemical dependency; (3) she

was previously diagnosed as chemically dependent or had treatment for chemical

dependency; and (4) she made consistent efforts to control the chemical dependency

since the diagnosis or treatment. See Minn. Stat. § 268.095, subds. 4(1), 6(a), 6(b)(9).

Berglund does not challenge the ULJ’s conclusion that her conduct on January 25, 2014,

meets the general definition of employment misconduct and that she was discharged for

such misconduct. Nor does Berglund challenge the ULJ’s implicit conclusion that the

employment misconduct was a consequence of her chemical dependency.                Instead,

Berglund contends that the ULJ incorrectly concluded that she failed to make consistent

efforts to control her chemical dependency, which led the ULJ to incorrectly determine

that she did not meet the chemical-dependency exception.



1
  Berglund does not challenge the ULJ’s finding that she was discharged. In its brief,
DEED does not respond to Berglund’s arguments in her brief, but instead argues that,
because Berglund quit and was not discharged, she is ineligible for employment benefits.
DEED asks this court to either modify the ULJ’s decision or to remand for the ULJ to
reconsider the issue of whether Berglund quit or was discharged. DEED’s request is
improper for two reasons. First, the Commissioner of DEED failed to request
reconsideration within 20 days of the ULJ’s initial decision, as required under Minn. Stat.
§ 268.105, subd. 2 (2014). Second, as a result, DEED is not a “petitioner” under section
268.105, subd. 7(d), and therefore is not entitled to appellate relief. Accordingly, for
purposes of this opinion, we accept the ULJ’s determination that Berglund was
discharged from her employment as a result of the incident on January 25, 2014.

                                            9
       Relying on Moeller v. Minnesota Dep’t of Transp., Berglund argues that the ULJ

applied the wrong legal standard by focusing on results rather than on Berglund’s efforts

to control her chemical dependency. 281 N.W.2d 879 (Minn. 1979). At the time Moeller

was decided, Minnesota’s unemployment-insurance statute recognized an exception to

the employment-misconduct rule if the misconduct was “due to [the relator’s] own

serious illness” and the relator “ha[d] made reasonable efforts to retain his employment.”

See Minn. Stat. § 268.09, subd. 1(b) (1978). The supreme court stated that “[a]lcoholism

is a chronic illness characterized by remissions and exacerbations. . . . Given the nature

of the disease, it is unreasonable to require the [relator] to maintain total abstinence even

after he enters treatment.” Moeller, 281 N.W.2d at 882 (citation omitted). A year later,

the Minnesota Legislature codified this rule into the statute. Leslin v. Cnty. of Hennepin,

347 N.W.2d 277, 279 (Minn. 1984). Seven years after Moeller, the supreme court

clarified: “Although the statute does not require an individual [to] totally abstain from

alcohol or achieve total success in treatment, the individual must make consistent efforts

to control his illness. The focus is upon an individual’s efforts, not his results.” Umlauf

v. Gresen Mfg., 393 N.W.2d 198, 200 (Minn. 1986) (emphasis added) (citation omitted).

       Here, the ULJ initially found that Berglund “made some efforts to control her

chemical dependency,” “attended counseling,” and “saw the counselor on nine occasions

during the period [of] August 26, 2013 to January 25, 2014.”               But, in denying

unemployment benefits, the ULJ concluded that Berglund’s “efforts to control her

chemical dependency were inconsistent without evidence of any period of cessation in

Berglund’s consumption of alcohol.” The ULJ also stated that there was “no evidence of


                                             10
a cessation in Berglund’s consumption of alcohol for any substantial period.”

Inexplicably, in her order of affirmation, the ULJ found that “[t]here was insufficient

evidence that Berglund made any effort to cease her consumption of alcohol during any

period.” (Emphasis added.) By focusing upon the results of Berglund’s treatment, rather

than Berglund’s efforts in controlling her chemical dependency, the ULJ erred as a matter

of law by requiring that there be a period of cessation. See id.; see also Moeller, 281

N.W.2d at 882.

       Moreover, the ULJ’s finding that “Berglund’s level of chemical abuse was not

shown to have reached any acceptable level or ceased being a problem at any time” also

emphasizes results over efforts. Not only was this conclusion inappropriately focused

upon the results of Berglund’s treatment, but it was also based upon the assumption that

Berglund’s level of alcohol consumption actually increased during the five months that

she received treatment from her psychologist prior to her discharge. Yet, at the hearing,

Berglund testified that, during this period, her alcohol use actually “went down.” When

the ULJ pressed her for specifics, Berglund testified that her drinking decreased from two

1.75-liter bottles of vodka every five to six days, to four to five drinks of vodka per day.

Because Berglund’s testimony was the only evidence regarding the level of her

consumption of alcohol during the five months that she treated with her psychologist, and

there is nothing in the record to support the ULJ’s determination that Berglund increased

her consumption during this period, we conclude that the ULJ’s determination is

unsupported by substantial evidence.




                                            11
       In reviewing Berglund’s efforts to control her chemical dependency, the record

demonstrates that, since her August 2013 assessment, she followed up with her

physician’s referral and recommendation that she seek counseling. Over the course of the

next five months, she underwent nine sessions of cognitive-behavioral therapy with her

psychologist for her alcohol dependency, which focused on how Berglund could stop

drinking alcohol safely.   The therapy also focused on helping Berglund find other

activities to replace drinking and finding the social supports she needed to become and

remain sober. There is nothing in the record indicating that Berglund failed to attend

these scheduled counseling sessions or that her psychologist was dissatisfied with

Berglund’s efforts during this period of treatment. And, consistent with Berglund’s

testimony that she was to gradually decrease her drinking, there is nothing in the

psychologist’s medical report that indicates that Berglund was told to stop drinking prior

to her discharge.

       Although the ULJ was critical of the treatment provided to Berglund, there is no

evidence that her psychologist, who was licensed, was unqualified to render counseling

for chemical-addiction problems.      And, consistent with Berglund’s testimony and

contrary to the determination of the ULJ, there is no indication in the months prior to

Berglund’s discharge that either her psychologist or her physician recommended that she

attend a formal inpatient or outpatient chemical-dependency treatment program. In a

very brief May 2014 letter, her physician noted that Berglund was diagnosed with

chemical dependency in July 2012 and that “a treatment program” was recommended for

her at that time. The letter also noted that, during the August 2013 assessment, she


                                           12
recommended that Berglund “restart cognitive therapy and alcohol treatment program.”

Her physician’s contemporaneous clinical notes from the August 2013 assessment

indicate that she referred Berglund for “[counseling] to help with all of [her] new

adjustments and drinking,” but there is no referral or recommendation in the clinical

notes regarding a formal inpatient or outpatient chemical-dependency treatment program.

Consistent with her physician’s clinical notes, shortly after this August 2013 referral,

Berglund began treating with a psychologist for her chemical-dependency issues. The

psychologist observed in her May 15, 2014 letter that it was only after Berglund’s

discharge from employment that she “recommended total abstinence from alcohol with in

or out patient treatment if needed.” (Emphasis added.) We agree with Berglund that her

physician’s cursory letter referring to “cognitive therapy and alcohol treatment program,”

when coupled with the physician’s clinical notes referring Berglund only to counseling,

fails to support the ULJ’s determination that Berglund’s testimony was inconsistent with

these medical records. See Carter, 574 N.W.2d at 730 (“Substantial evidence means

more than a scintilla of evidence” and must be “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” (Quotation omitted.)).

       In her initial decision, the ULJ found that Berglund made “some efforts” to control

her chemical dependency, but nonetheless denied her unemployment benefits. The

primary basis for the ULJ’s decision was based on an error of law, that a total cessation

of alcohol use was necessary in order to find “consistent efforts,” and on unsubstantiated

findings that Berglund had increased her level of alcohol consumption during the five

months prior to her discharge and had failed to attend an inpatient or outpatient treatment


                                            13
program that had been recommended by her treatment providers.             In her order of

affirmation, the ULJ found that there was insufficient evidence that Berglund made “any

effort” to cease her consumption of alcohol during any period and was critical of

Berglund’s treatment providers and their recommendations or lack of recommendations.

The ULJ failed to explain why she found that Berglund made “some efforts” to control

her chemical dependency in the initial decision, but then determined that she did not

make “any effort” to control her chemical dependency in the order of affirmance.

       Although Berglund’s treatment providers perhaps should have recommended that

she attend a formal inpatient or outpatient treatment program, it is not the role of the ULJ

or this court to second-guess the treatment recommendations of medical and mental-

health professionals. Rather, the ULJ’s charge was to determine whether Berglund made

consistent efforts to control her chemical dependency, which would include a

determination of whether she had cooperated with her treating physician and psychologist

and followed up with their recommendations during the five months prior to her

discharge from employment. Although Berglund had a relapse, which resulted in her

discharge, there was no evidence that she failed to cooperate with her treatment

professionals or failed to follow up with any recommended treatment. And, consistent

with the goals set out for her by her psychologist, she decreased her consumption of

alcohol over the five-month period prior to her discharge from employment. The ULJ

erred by focusing upon Berglund’s results, rather than her efforts, and the ULJ’s

conclusion that Berglund failed to make consistent efforts to control her chemical

dependency is not supported by substantial evidence.         Because Berglund meets the


                                            14
chemical-dependency exception to the employment-misconduct rule, we determine that

she is entitled to unemployment benefits as a matter of law. See Irvine, 779 N.W.2d at

103.

       Reversed.




                                         15
