2015 UT App 201

THE UTAH COURT OF APPEALS

KEVIN A. UNCK,

Petitioner,

v.

DEPARTMENT OF WORKFORCE SERVICES,

Respondent.

Per Curiam Decision

No. 20150043-CA

Filed August 13, 2015

Original Proceeding in this Court

Kevin A. Unck, Petitioner Pro Se

Suzan Pixton, Attorney for Respondent

Before JUDGES STEPHEN L. ROTH JOHN A. PEARCE, and 

KATE A. TOOMEY.

PER CURIAM:

¶1 Kevin A. Unck seeks review of the Workforce Appeals 

Board’s (the Board) final decision (1) ordering Unck to repay 

unemployment benefits because he was not able or available for 

full-time work, and (2) imposing a penalty for fraud.

¶2 In Carbon County v. Workforce Appeals Board, 2013 UT 41, 

308 P.3d 477, our supreme court set forth the standard of review 

for reviewing the Board’s decision concerning a person’s request 

for unemployment benefits. See id. ¶ 7. Specifically, such a 

determination is reviewed as a mixed question of fact and law 

that is more fact-like because “this case ‘does not lend itself to 

consistent resolution by a uniform body of appellate precedent.’” 

Id. (citation 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 omitted). The Board’s determination of 
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20150043-CA 2 2015 UT App 201

fraud involves the same fact-like inquiry. Accordingly, both the 

Board’s decision concerning Unck’s entitlement to benefits and 

the Board’s determination of fraud are entitled to deference.

¶3 Unck filed a claim for unemployment benefits effective 

October 13, 2013. He indicated that he was available for full-time

work and was making active searches for work. However, in 

January of 2014, Unck applied for Social Security Disability 

Benefits (SSDI). In his application he reported that he was unable

to work since October 14, 2013, one day after he applied for 

unemployment benefits. He also reported that he continued to 

be unable to work. Unck testified that an employee of the Social 

Security Administration (the SSA) informed him that his 

application for disability benefits would not interfere with his 

claims for unemployment benefits.

¶4 At one point Unck briefly obtained employment as a 

truck driver but was immediately let go because federal 

regulations prohibited anyone who relied on a medication Unck 

was taking from being employed as a driver that is required to 

cross state lines. While he was receiving unemployment benefits 

Unck also applied for paralegal positions. However, Unck 

admitted that he probably did not have the skill-set necessary for

such positions. Additionally, after Unck’s unemployment benefits 

expired, Unck obtained an opinion from a doctor indicating that 

he was unable to work.

¶5 To be eligible for unemployment benefits, the Department

of Workforce Services’ rules require 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 [and] unable to work is necessarily 

unavailable for full-time work and therefore is disqualified from 
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20150043-CA 3 2015 UT App 201

receiving benefits.” Yarrington v. Department of Workforce Services, 

2014, UT App 216, ¶ 5, 335 P.3d 930 (per curiam).

¶6 We cannot say that the Board abused its discretion in 

determining that Unck was unable to work. Specifically, Unck 

applied for SSDI benefits stating that he was unable to work, he 

could not be hired as an interstate driver due to certain 

medications he was taking, and immediately after Unck’s

unemployment benefits ended, Unck obtained an opinion from a 

doctor stating that Unck did not have the ability to work fulltime. Further, while Unck did apply for paralegal positions, the 

Board found that these job searches were not made in good faith 

because “the Claimant lacks the skills and ability to work as a 

paralegal.” Thus, evidence supports the Board’s determination 

concerning Unck’s eligibility for benefits.

¶7 Unck next claims that the Board erred in imposing a 

penalty for fraud. 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 purpose 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).

¶8 The Board determined that Unck provided false

information by submitting claims stating that he was able to 

work. It further determined that Unck should have known that 

information was incorrect. Evidence in the record supports these 

determinations. Unck submitted claims indicating that he was 
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able to work when he knew that he was unable to work due to 

his various ailments. Unck argues that he did not commit fraud 

because an individual from the SSA informed him that his 

application for disability benefits would not affect his 

unemployment benefits. However, in Yarrington we concluded 

that statements made by a SSA representative are immaterial to a 

determination of whether a person is entitled to unemployment 

benefits under Utah law, as any inquiries concerning benefits 

should be directed to the Department. See Yarrington, 2014 UT 

App 216, ¶ 5. Thus, a claimant cannot reasonably rely on 

statements made by persons with no connection to the 

Department. Accordingly, evidence also supports the Board’s 

determination to impose a fraud penalty against Unck.

¶9 For these reasons we decline to disturb the decision of the 

Board.