IN THE UTAH COURT OF APPEALS

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Russell Morris,

Petitioner,

v.

Department of Workforce Services,

Respondent. )

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) PER CURIAM DECISION

Case No. 20120698

‐ CA

F I L E D

(December 20, 2012)

2012 UT App 361

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Original Proceeding in this Court

Attorneys: Russell Morris, Ivins, Petitioner Pro Se

Amanda B. McPeck, Salt Lake City, for Respondent

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Before Judges Davis, McHugh, and Voros.

¶1 Russell Morris seeks judicial review of the Workforce Board of Appeals’s (Board)

July 20, 2012 decision. This matter is before the court on a sua sponte motion for

summary disposition. We decline to disturb the Board’s decision.

¶2 Morris challenges the Board’s determination that he fraudulently obtained

benefits to which he was not entitled. An agency’s findings of fact are accorded

substantial deference and will not be overturned if based on substantial evidence, even

if another conclusion from the evidence is permissible. See Hurley v. Board of Review of

Indus. Comm ʹ n

, 767 P.2d 524, 526 (Utah 1988). This court will not disturb the Board’s

application of law to its factual findings unless its determination exceeds the bounds of

reasonableness and rationality. See Johnson v. Department of Emp’t Sec.

, 782 P.2d 965, 968

(Utah Ct. App. 1989).20120698

‐ CA 2 ¶3 There is substantial evidence supporting the Board’s determination that Morris

fraudulently obtained benefits to which he was not entitled. The Claimant Guide

provides that if a claimant works while claiming benefits, he or she must report all

gross earnings for the week in which the work is performed, regardless of when the

claimant is paid. Claimants are held to the information contained in the Claimant Guide

. See Frislie v. Department of Workforce Servs., 2011 UT App 114, ¶ 7, 256 P.3d 229.

¶4 “Fraud requires a wilful misrepresentation or concealment of information for the

purpose of obtaining unemployment benefits.” Utah Admin. Code R994

‐ 406

‐ 401(2). In

order to establish fraud, the Department must show materiality, knowledge, and

willfulness. See id. R994

‐ 406

‐ 401(1). Materiality is established when a claimant makes a

misrepresentation for the purpose of obtaining any benefit to which the claimant is not

entitled. See id. R994

‐ 406

‐ 401(1)(a). Knowledge is established when the claimant knew,

or should have known, that the information submitted to the Department was incorrect,

or that he failed to provide required information. See id. R994

‐ 406

‐ 401(1)(b).

“Willfulness is established when the claimant files claims or other documents

containing false statements, responses or deliberate omissions.” Id. R994

‐ 406

‐ 401(1)(c).

These elements establish fraud for the purposes of assessing a fraud penalty, and no

specific intent to defraud is required. See id. R994

‐ 406

‐ 401(3).

¶5 Materiality was established because Morris failed to report working during the

time period that he worked. Morris also reported his net earnings, instead of his gross

earnings as instructed. Furthermore, Morris elected not to answer the Department’s

questions accurately, instead deciding to report his earnings when he felt that it was

appropriate for him to do so. Morris was required to report all of his work and gross

earnings for the week in which he worked, even if he had not yet been paid. There is

substantial evidence that Morris made misrepresentations for the purpose of obtaining

benefits to which he was not entitled.

¶6 With regard to the knowledge prong, the Board determined that Morris knew, or

should have known, that the information he submitted to the Department was incorrect

or that he failed to provide the information required by the Department. Based on the

Claimant Guide

, Morris knew, or should have known, that he needed to report his work

when the work was performed. Morris did not comply with the Department’s

instructions. He also reported his net earnings despite clear instructions that he was

required to report his gross earnings. There is substantial evidence supporting the

Board’s determination that the claimant knew, or should have known, that the

information that he submitted to the Department was incorrect, or that he failed to

provide required information.20120698

‐ CA 3 ¶7 The Board also determined that Morris demonstrated willfulness by filing claims

containing false statements, responses, or deliberate omissions. Morris elected to

answer the Department’s questions inaccurately. By failing to report his work and

earnings accurately, he received benefits to which he was not entitled. There is

substantial evidence that Morris willfully filed claims containing false statements,

responses or deliberate omissions. Thus, the Board correctly determined that the

willfulness prong was established.

¶8 Morris next asserts that the Board erred in excluding his new evidence on appeal,

including bank records that were not submitted to the Administrative Law Judge (ALJ).

The Department’s instructions for preparing for the hearing before the ALJ informed

Morris that the hearing would be his only chance to present evidence that was relevant

to his case. Morris was advised that further appeals would be limited solely to the

evidence introduced at the hearing before the ALJ.

¶9 Absent a showing of unusual or extraordinary circumstances, the Board will not

consider new evidence on appeal if the evidence was reasonably available and

accessible at the time of the hearing before the ALJ. See Utah Admin. Code R994

‐ 508

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305. Morris presented new evidence to the Board that was available at the time of the

hearing before the ALJ. The Board determined that Morris did not offer any explanation

as to why he did not provide the new evidence to the ALJ, nor did he assert that there

were extenuating circumstances that would warrant accepting his new evidence on

appeal. Morris fails to demonstrate that the Board erred by excluding his new evidence

on appeal.

¶10 Accordingly, we decline to disturb the Board’s July 20, 2012 decision.

____________________________________ James Z. Davis, Judge

____________________________________ Carolyn B. McHugh, Judge

____________________________________ J. Frederic Voros Jr., Judge