Baker v. Department of Employment Security, Industrial Commission
Baker v. Department of Employment Security, Industrial Commission
Opinion of the Court
Plaintiff Barry W. Baker seeks a review and reversal of a decision of the Industrial Commission,
On November 18, 1974, the plaintiff filed a claim for unemployment benefits. The
Section 35-4-ll(g), U.C.A.1953, requires employers to maintain “true and accurate work records containing such information as the commission may by regulation prescribe.” Furthermore, 35-4-4(e), U.C.A. 1953 mandates that:
If any employer fails to furnish reports concerning separation and employment as required by this act . the commission shall on the basis of such information as it may obtain, determine the eligibility and insured status of any individual affected by such failure . [Emphasis added.]
Neither the plaintiff nor Valley Roofing produced records to verify the dates of employment or the jobs worked by the plaintiff during the period in controversy. Mr. John Whitcome, for the company, submitted an Employment and Separation form which indicated that the plaintiff had started to work on April 1, 1975; and that he had earnings of $1,275 for the second quarter (April, May and June) and of the identical amount for the third quarter (July, August and September) 1975.
The explanation offered by plaintiff of the overlap of his claiming unemployment compensation and also of being employed during April and May was that he actually did not begin work until the latter part of May or the first part of June. In support of that assertion, Mr. Whitcome stated that the April 1 date was entered because that was the beginning of the second quarter; and he knew that the plaintiff had worked sometime during that quarter, but was not certain of the first date of employment. He further said that the plaintiff’s earnings were the same for both quarters because there was more work in June and the plaintiff did not work steady between July and September.
The plausibility and the veracity of those explanations was for the Commission to determine. Moreover, in addition to the unlikelihood that the plaintiff received $1,275 for the month of June and the same amount for the entire three month quarter following, the Commission was not obliged to believe the testimony of these witnesses who had an obvious self interest therein.
The initial and continuing burden of proof to establish eligibility to receive benefits was upon the plaintiff.
Affirmed. No costs awarded.
. That the decision of the Board of Review is deemed to be the decision of the Commission, see Sec. 35-4-10(a), U.C.A.1953.
. This case is companion to and analogous in principle to Whitcome v. Department of Employment Security, Utah, 1977, 563 P.2d 807.
. See Moore v. Prudential Ins. Co., 26 Utah 2d 430, 491 P.2d 227 (1971); Jensen v. Logan City, 96 Utah 522, 88 P.2d 459 (1939); Gagos v. Indus. Comm., 87 Utah 101, 48 P.2d 449 (1935).
. Medina v. Indus. Comm., 554 P.2d 1360 (Colo.App. 1976); Townsend v. Kansas Employment Security, etc., 218 Kan. 306, 543 P.2d 888 (1975); Moya v. Employment Security Comm., 80 N.M. 39, 450 P.2d 925 (1969); Noone v. Reeder, 151 Mont. 248, 441 P.2d 309 (1968); Townsend v. Employment Security Dept., 54 Wash.2d 532, 341 P.2d 877 (1958).
. Kennecott Copper Corp. v. Dept. of Employment Security, 13 Utah 2d 262, 265, 372 P.2d 987, 989 (1962).
Dissenting Opinion
(dissenting).
See my dissent in Whitcome v. Dept. of Employment Security, 564 P.2d 1116 (Utah, 1977).
Reference
- Full Case Name
- Barry W. BAKER, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY, INDUSTRIAL COMMISSION of Utah, Defendant
- Cited By
- 9 cases
- Status
- Published