2016 UT App 44

THE UTAH COURT OF APPEALS

SULJO TALOVIC,

Petitioner,

v.

DEPARTMENT OF WORKFORCE SERVICES,

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. FREDERIC VOROS JR., STEPHEN L. ROTH, and 

KATE 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.