Talovic v. Department of Workforce Services

2016 UT App 44
THE UTAH COURT OF APPEALS
S ULJO T ALOVIC ,
Petitioner,
v.
DEPARTMENT OF WORKFORCE S ERVICES,
Respondent.
Per Curiam Decision
No. 20160014-CA
Filed March 10, 2016
Original Proceeding in this Court
Suljo Talovic, Petitioner Pro Se
Amanda B. McPeck, Attorney for Respondent
Before JUDGES J. F REDERIC VOROS JR ., S TEPHEN L. R OTH , and
K ATE A. TOOMEY .
PER CURIAM:
¶1 	Suljo Talovic seeks review of the Workforce Appeals
Board’s 	(the 	Board) 	decision 	denying 	him 	unemployment
benefits and assessing a fraud overpayment. We do not disturb
the Board’s decision.
¶2 	A 	claimant 	is 	not 	eligible 	to 	receive 	unemployment
benefits unless he is able to work and available for full-time
work. Utah Code Ann. § 35A-4-403(1)(c) (LexisNexis 2015). “Any
person who, by reason of his fraud, has received any sum as
benefits . . . to which he was not entitled shall repay the sum,” id.
§ 35A-4-406(4)(a), along with a civil penalty for fraud in an
amount equal to the overpayment, see id. § 35A-4-405(5)(c). We
review the Board’s decision on a request for unemployment
benefits as a mixed question of fact and law that is more fact-like
because the “case does not lend itself to consistent resolution by
a 	uniform 	body 	of 	appellate 	precedent.” 	Carbon 	County 	v.

Talovic v. Department of Workforce Services
20160014-CA 	2 	2016 UT App 44
Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (citation
and internal quotation marks omitted). Accordingly, the Board’s
determinations are entitled to deference because “the appellate
court would be in an inferior position to review the correctness
of the . . . decision.” Id. (omission in original) (citation and
internal quotation marks omitted). “Because of the fact-intensive
conclusions 	involved 	at 	the 	agency 	level,” 	the 	Board’s
determination that Talovic was ineligible for benefits because he
was not able and available for work and its determination of a
fraud overpayment are both entitled to deference. See id.
¶3 	The Department of Workforce Services’ (the Department)
rules provide that a claimant must have no physical or mental
health 	limitations 	that 	would 	preclude 	the 	claimant 	from
immediately accepting full-time work. Utah Admin. Code R994-
403-111c(1). The Board and the Department take the position
“that a claimant who tells the Social Security Administration,
through an application for disability benefits with that agency,
that he or she is disabled, is not considered to be able and
available for full-time work under Department rules.” This court
has upheld the disqualification from benefits and establishment
of an overpayment on this basis. See, e.g., Unck v. Department of
Workforce Servs., 2015 UT App 201, ¶¶ 5—8, 358 P.3d 339 (per
curiam); Yarrington v. Department of Workforce Servs., 2014 UT
App 216, ¶ 5, 335 P.3d 930 (per curiam).
¶4 	Talovic filed a claim for unemployment benefits effective
June 1, 2015. On August 13, 2015, he applied for Social Security
disability 	benefits. 	In 	his 	application 	to 	the 	Social 	Security
Administration, he affirmed that he was disabled and had been
unable to work since June 1, 2015. It is undisputed that Talovic
told the Social Security Administration that he was disabled and
unable to work, while at the same time he filed weekly benefits
claims stating to the Department that he was able and available
to 	work. 	Although 	he 	stated 	at 	the 	hearing 	before 	the
Administrative Law Judge that he needed to continue to work to

Talovic v. Department of Workforce Services
20160014-CA 	3 	2016 UT App 44
support his family, he was then pursuing disability benefits from
the 	Social 	Security 	Administration. 	Accordingly, 	the 	Board
found his assertion to be unpersuasive. We do not disturb the
Board’s decision that Talovic was disqualified from receiving
unemployment benefits because he was not able and available
for work and therefore was required to repay the benefits he
received.1
¶5 	Talovic also challenges the Board’s imposition of a fraud
penalty in an amount equal to the overpayment amount. To
establish fraud, the Department must establish three elements:
materiality, knowledge, and willfulness. See Utah Admin. Code
R994-406-401(1). “Materiality is established when a claimant
makes false statements or fails to provide accurate information
for the purposes of obtaining . . . any benefit payment to which
the claimant is not entitled. . . .” Id. R994-406-401(1)(a)(i)(A).
Knowledge is established when the claimant knew or should
have known that the information submitted to the Department
was incorrect or that the claimant failed to provide required
information. See id. R994-406-401(1)(b). Finally, “[w]illfulness is
established when a claimant files claims or other documents
containing false statements, responses or deliberate omissions.”
Id. R994-406-401(1)(c).
¶6 	The Board found that Talovic provided false information
by submitting claims to the Department that stated that he was
able and available for full-time work, which resulted in his
receiving unemployment benefits. He should have known that
1. Talovic provides documents to this court demonstrating that
the 	Social 	Security 	Administration 	subsequently 	denied 	his
claim for disability benefits and advised him of the appeals
process. These documents are not a part of the agency record
and were not considered by the Department and the Board.
Accordingly, this court does not consider these documents.

Talovic v. Department of Workforce Services
20160014-CA 	4 	2016 UT App 44
the information was incorrect because he had stated that he was
disabled and unable to work during the same time period in an
application for disability benefits. Evidence in the agency record
supports 	these 	determinations. 	See 	Stauffer 	v. 	Department 	of
Workforce Servs., 2014 UT App 63, ¶ 5, 325 P.3d 109 (“When a
petitioner 	challenges 	an 	agency’s 	findings 	of 	fact, 	we 	are
required 	to 	uphold 	the 	findings 	if 	they 	are 	supported 	by
substantial evidence when viewed in light of the whole record
before 	the 	court.” 	(citation 	and 	internal 	quotation 	marks
omitted)). 	Accordingly, 	the 	evidence 	also 	supports 	the
imposition of a fraud penalty.
¶7 	Based upon the foregoing, we decline to disturb the
Board’s 	decisions 	disqualifying 	Talovic 	from 	receiving
unemployment benefits and imposing a fraud overpayment and
penalty.