2014 UT App 216
_________________________________________________________
THE UTAH COURT OF APPEALS
DAVID J. YARRINGTON ,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20140500-CA
Filed September 11, 2014
Original Proceeding in this Court
David J. Yarrington, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
SENIOR JUDGE PAMELA T. GREENWOOD .1
PER CURIAM:
¶1 David J. Yarrington seeks review of the Workforce Appeals
Board’s (the Board) decision denying him unemployment benefits
and establishing a fault overpayment. We do not disturb the
Board’s decision.
¶2 A claimant is not eligible to receive unemployment benefits
unless he is able and available for full-time work. Utah Code Ann.
§ 35A-4-403(1)(c) (LexisNexis Supp. 2013). If it is determined that,
by reason of a claimant’s fault, benefits are paid to which a
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
Yarrington v. Department of Workforce Services
claimant was not entitled, the claimant shall repay the benefits
received. Id. § 35A-4-406(4)(b) (LexisNexis 2011). In Carbon County
v. Workforce Appeals Bd., 2013 UT 41, 308 P.3d 477, the Utah
Supreme Court stated the standard of review to be used in
reviewing the Board’s decision on a request for unemployment
benefits. Id. ¶ 7. Such a determination is reviewed 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.” Id. (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. (citation
and internal quotation marks omitted). “Because of the fact-
intensive conclusions involved at the agency level,” the Board’s
determination that Yarrington was ineligible for benefits because
he was not able and available for work, as well as its determination
of a fault overpayment, is entitled to deference. See id.
¶3 To the extent that Yarrington’s docketing statement filed in
this court challenges a fraud penalty imposed in the decision of the
Administrative Law Judge (ALJ), that claim is moot. While the
Board affirmed the ALJ’s decision denying benefits due to
Yarrington’s inability to work full time, the Board modified the
overpayment and penalty totaling $17,606 to only a fault
overpayment in the amount of $8,806. Accordingly, our review is
limited to considering the challenge to the disqualification from
receiving future benefits and the imposition of a fault overpayment
in the amount of benefits actually received.
¶4 After knee surgery in November 2012, Yarrington took a
leave of absence. He did not return to work before being laid off in
February 2013. He filed a claim for unemployment benefits and
began receiving benefits effective February 24, 2013. He filed for
Social Security Disability Benefits (SSDI) on April 1, 2013. When
Yarrington filed his application for SSDI, he was asked if he
certified that he was unable to work due to “illness, injuries or
conditions that have lasted or are expected to last at least 12
20140500-CA 2 2014 UT App 216
Yarrington v. Department of Workforce Services
months.” He answered affirmatively. At the same time, Yarrington
was filing weekly claims for unemployment benefits on which he
stated he was able and available for full-time work. He testified
that he was told by a representative of the Social Security
Administration (the SSA) that he could receive unemployment
benefits while receiving SSDI benefits. He did not contact anyone
at the Department of Workforce Services (the Department) to ask
about his eligibility to collect unemployment benefits while
claiming to be disabled and unable to work. After learning that
Yarrington had applied for SSDI, the Department determined that
Yarrington was ineligible to receive unemployment benefits
because he was not able and available for work, and it began
proceedings to recover its overpayment.
¶5 The Department’s rules provide that a claimant must have
no physical or mental health limitations that would preclude
immediate acceptance of full-time work. Utah Admin. Code R994-
403-111c. The Department and the Board have determined that a
claimant who files an application for SSDI representing to the SSA
that he is disabled is necessarily unable to work is necessarily
unavailable for full-time work and therefore is disqualified from
receiving benefits. Regardless of any statements made by the SSA
representative, that federal agency does not set or interpret the
rules for receipt of unemployment benefits through the Utah
Department of Workforce Services. It is undisputed that Yarrington
told the SSA that he was disabled and unable to work, while at the
same time he told the Department that he was able and available
for work and was seeking work.2 Yarrington received
unemployment benefits after he filed for disability benefits. We
2. At the time of the hearing before the ALJ, Yarrington had been
denied SSDI benefits and was appealing that decision. The Board’s
decision stated that Yarrington could ask to have his
unemployment claim reconsidered if he was denied SSDI. The
Board stated that he could not overcome the presumption of
inability to work as long as he was pursuing disability benefits
from the SSA.
20140500-CA 3 2014 UT App 216
Yarrington v. Department of Workforce Services
defer to the Board’s conclusion that Yarrington was not able and
available to work and therefore was not eligible for benefits. If
Yarrington had correctly reported the facts, benefits would not
have been paid. Accordingly, the Board correctly assessed an
overpayment. While the Board noted that the Department
“ordinarily” establishes a fraud overpayment under these
circumstances, the Board stated that it believed only a fault
overpayment was appropriate under the facts.
¶6 Accordingly, we decline to disturb the Board’s decision.
20140500-CA 4 2014 UT App 216