*1 parties’ rights have a chill- gard of the will clauses

ing effect on the use of arbitration The arbitrators’ decision contracts. infidelity

ignore rights represents an these agree-

to the essence of the investment County, 309 N.W.2d at Ramsey

ment. See (citing v. Ameri- United Steelworkers Co., 363 U.S. 80 S.Ct. Mfg.

can (I960)). I

L.Ed.2d 1403 would remand this court for determination

issue to the district appropriate amount of costs and

attorney fees. VALENTY, Relator, M.

Joan

MEDICAL CONCEPTS DEVELOP-

MENT, INC., Jobs

Training, Respondents.

No. C0-92-974. Appeals

Court of of Minnesota.

Nov. Granted Jan.

Review *2 (“Medical job Concepts”).

Inc. The in- light manufacturing type work—a volved Valenty previously per- had not of addition, In job paid formed. the less $3.50 per Valenty hour than had been Nevertheless, as a dental assistant. Valen- ty job decided to for might lose her believed otherwise enti- to tlement benefits. stating Valenty applied job, prob- job application that she had form lems with her back. The evidence indicates Valenty prob- experienced back Paul, Knapp, for B. St. relator. Peter having undergone years, lems for several Inc., Concepts Development, pro Medical spinal surgery fusion in 1988 and additional se. surgery in 1989. Todd, Dept, E. Minnesota of Jobs & Kent morning theOn of October Va- Paul, respondent Com’r Training, St. for of lenty reported for at Medical Con- Training.

Jobs cepts. filling employment-relat- After out began applying ed forms she first PARKER, by and decided Considered patches drapes, surgical adhesive then DAVIES, P.J., and SCHUMACHER JJ. folding lightweight surgical drapes. In the afternoon, Valenty assigned the task OPINION folding larger surgical drapes. Valenty of repetitively bent a work table fold over DAVIES, Judge. by drapes and end of her shift her Valenty seeks review Relator Joan of bothering her. back issued a two decisions approximately p.m., Medical At 3:20 Con- Commissioner of Jobs and respondent Valenty to cepts’ president approached see representa- Training. trial, At she wanted work overtime. voluntarily quit Valenty concluded tive response president as recalled fol- good cause attributable to without lows: Valenty and that respondent employer, * * * says And she was not what for work not able work/available * * * I’m expected get- I it to be. According- in for two October weeks ting getting paid what I think should be representative con- ly, the Commissioner’s get paid. really And I like to would back entitled was not cluded that * * * My as a dental assistant. back unemployment compensation bene- * * * right [W]hy feel doesn’t to me. part. in part affirm and reverse fits. We just temporary don’t we consider this a something position. [I]t’s FACTS to do. I want employed Joan for Relator leaving Upon dental years registered as assis- several applied to her went home ice back. becoming unemployed Upon tant. pain Valenty characterized her back as 10 1991, Valenty applied to summer of 1 to on a scale 10. She was advised Training (“Depart- Jobs Department by physician job, ment”) compensation only extra-strength Tylenol she took granted Department benefits. claim, July effective repre- days later, 1991, Department Two on October September physician’s to her office and obtained referred to a with went

sentative Development, physician’s statement from a assistant respondent 15, 1991. The referee indicating that she was unable to work affirmed both De- partment denying Valenty 1 and Octo- determinations October 3. Between between 15, 1991, Valenty to unemployment Valenty appealed continued benefits. ber back, person referee’s rest her decisions to a Commissioner’s *3 jobs. representative, dental assistant who affirmed both deci- sions. Valenty testified that it took two weeks down”; “finally settle pain certiorari, Valenty has obtained a ofwrit eight during the first pain seeking

rated rep- review during the second week. a seven week and decisions. resentative’s testified, however, that she explicitly She assistant, as a dental could have worked ISSUES pain, that does despite the because work Valenty eligible I. Is to receive unem- She later also stat- not increase benefits, ployment despite leaving her em- ed, “[N]o, probably I couldn’t ployment with Medical because after that time and was [have] job was for her and her unsuitable time.” In to the unemployed at the answer wages weekly there were less than her you question, “So that two weeks unemployment benefit amount? you able to work?” don’t feel that were support II. Does the record the Com- responded take this as Valenty “Yes.” We representative’s missioner’s determination jobs a reference to other than work as a Valenty that was unable to work/unavail- Valenty continued to dental assistant. 4 and able work between October Octo- during the last seek and week 15, ber 1991? October, was offered and job as a dental assistant. ANALYSIS Department is- On October I. Valenty un- sued a determination that 3, appeal requires analy- Resolution of this to work between October Accordingly, Department provisions deter- sis and harmonization of several 1991. unemployment compensation Valenty mined that to re- within (1) period. provisions time statutes. Those involve: ceive benefits for that voluntarily separation good cause for a Department On October (2) employment; suitability of offered from Valenty issued a second determination that (3) employment; and the definition of “un- job voluntarily had with employment.” good cause and Concepts without without voluntarily quits job An making efforts to retain her individual who reasonable good to the em- Department determined cause attributable employment. The without disqualified receiving unem- disqualified ployer from from Valenty was receiv- 268.09, ployment ing unemployment benefits. benefits. 1(a) (1990). Here, the Commission- Valenty appealed both determinations Valenty concluded that er’s referee, conducted a Department who voluntarily quit good cause without hearing. referee took evidence and The Concepts, and attributable to Medical testimony by Valenty, Medical Con- heard disqualified therefore was group and a leader. Fol- cepts’ president, unemployment benefits. hearing, the referee issued two lowing the first, argues decisions, concluding, that the at Medi- for her good cal “suitable” voluntarily without had cause, second, un- she is certified as a dental assis- that she had been 268.09, October 41 and tant. See Minn.Stat. for work between available 3; therefore, analysis actually we confine our 1. The determined referee opinion to the issue whether between October was unavailable for work supports to work between Octo- the determi- available recprd work/able on October ber nation that was unavailable completing assignment. disquali- without (unemployed individual is (1990) receiving unemployment benefits court stated: McDonnell fied from accept for or “suit- upon failure to argues disqual- Relator should reemployment). able” quitting ified for where she would * * * disqualified had she been have requires, suitability determination A accept job. refused to the same factors, among consideration other § Minn.Stat. prospects of individual’s experience, * * *, degree of physical 268.09, length of customary occupation. securing fitness and risk involved to local work 2(a). prior training, health in the the issue of ry exception to the Unsuitability of the sion, [T]he ^[*] Minn.Stat. sjc suitability ^[*] *4 voluntary quit provi- 268.09, correctly concluded ^[*] was irrelevant. is not a statuto- ^[*] ^[*] 1(1) in this case establishes (Supp.1983). The record that the at as a matter of law at 341. Id. Yalenty not Concepts was suitable re-affirm the conclusion While we meaning. Yalenty ar statutory within the “ex- unsuitability of work is not a stated required if not gues that she was voluntary quit provision, we ception” to the job at Medical accept for or the “unsuitability” opinion the that the are of penalized trying should not be provisions must “voluntary quit” be that this quitting. We note job and then together. considered raised before the Commis issue not (1990) (“The legislature intends 645.17 Ordinarily, we will representative. sioner’s and cer- the entire statute to be effective that have not been not consider issues tain.”). Jaakola v. Duluth/Su raised below. See prior Both to and since our decision Corp., 874 Area Educ. Television perior McDonnell, courts re Minnesota have (Minn.App.1985) (argu N.W.2d situations somewhat similar to this viewed improperly presented below was ment S., Holiday Village In case. Sticka v. However, the issue appeal). raised (Minn.1984), employee an N.W.2d 761 may suitability of a here—whether involuntarily separated from full-time work if determining an individu considered when accepted quit then subsequently purely legal good cause to al had —is part-time jobs. supreme court two not involve a determina question, and does employee’s voluntary concluded appellate An court disputed facts. part-time jobs of the did not termination appeal if the a new issue on may consider receiving unemploy disqualify her from issue light statutory provi ment benefits in of a controversy of the entire is decisive authorizing for a worker who sion benefits advantage possible is no where there unemployed. 763. The partially Id. at party in not disadvantage to either hav- court stated: Sticka ruling question. on the No ing prior involuntarily terminat- When relator was disadvantaged facts when the party is ed from her as a structural undisputed. are engineer, “unemployed.” she became Independent Dist. No. v. Sch. Harms * * * eligible for The relator was unem- (Minn.1990)(citations 571, 577 N.W.2d benefits, ployment her contin- omitted). part-time employment signifi- ued did argues ques that the The Commissioner cantly affect amount benefits in this suitability is not relevant tion of entitled. which case because (citation omitted). at 762 Id. quit. The Concepts and then Corp., In Holman v. Olsten 389 N.W.2d Anytime v. cites McDonnell (Minn.App.1986), this court (Minn.App. Temporaries, 349 N.W.2d 339 reasoning in and concluded that 1984), reluctantly ac Sticka employee where an an individual did not become cepted temporary position and then when, following work in effort to herself from remove unemployment benefits unemployed.2 the ranks of the employment, separation from full-time In quit part-time job. she took and then light at our decision that the Holman, stated: we was unsuitable for Valen- that, ty, need not as a [part-time] we address the claim working for Ol- Even while she is problems, result of back sten, within “unemployed” Holman was entitled benefits under com- meaning * * exception” disqualifi- the “serious illness Sticka, pensation laws *. As in 268.09, subd. cation. See Minn.Stat. § legislature could have intended 1(c)(2)(1990) (an disquali- individual is not disqualifying result of rela- unfortunate receiving unemployment fied from tor; has remained if separated personal, “due to ill- serious willing try less than suitable has been provided ness that such has individual doing allevi- partially so work and employ- made reasonable efforts to retain support until state’s burden of ated the ment”). again ranks of join she is once employed. II. Id. separated Even *5 case, after became reasons, non-disqualifying she work for at unemployed, she full-time work may to receive quit day she Medical but work,” if was not or benefits “able to day that at started. After of “actively seeking Minn. work.” See Concepts, Valenty “un Medical remained 268.08, 1(3) (1990). For each Stat. statutory definition employed” within day is the individual unable to work/un- cited Sticka Holman: weekly available for individual’s is reduced one-fifth. Id. benefit shall be deemed “unem- An individual any than ployed” in week of less Department’s own rules define “able wages payable if the with full time work to and “available for work”: work” are less than the respect to such week work a must have To be able to claimant weekly benefit amount. individual’s per- physical ability and mental customary duties form the usual of his 268.04, (1990). subd. 23 Obvi- Minn.Stat. § other occupation or the usual duties of day wages total for the ously, training, by he is for which fitted work Concepts Medical at would is experience, capability and which unemploy- weekly than her have been less employment engaged by oth- gainful with the amount. Consistent ment benefit of ers as a means livelihood. burden Holman, conclude policy of we Sticka establishing ability is on the to work individual, such that where claimant, presump- there will be no attempts briefly an unsuitable Valenty, as is that a claimant not able to work. tion full-time, disqualified job, if is not even (1991). Minn.R. 3306.0400 if receiving unemployment benefits claimant considered available weekly wages from the her received [A] total willing to only ready if he is work weekly less job are than attempted There accept full-time suitable work. amount. unemployment benefit restrictions, either self-im- must be no Holman, employee Like circumstances, or created which posed willing try than suitable less “has been accepting full-time prevent work. legis- Again, cannot we believe work.” (1991). Minn.R. 3305.0500 the unfortunate result lature intended definitions, the Com- Applying to an the above disallowing adopted ref- attempted unsuitable missioner’s employee who note, charged not be the benefits employ- should that when an count 2. We also Concepts employee subsequently paid employee. hires an er such as Medical circumstances, employer’s ac- that under these Valenty began findings cepts. that full-time and decision that When eree’s employment, unemploy- unavailable work between October her entitlement to upon 1991. The referee relied ceased. ment benefits condition, Valenty’s medical had a which Valenty voluntarily quit with during bearing ability those Concepts, claiming that she Minn.R. 3305.0400. The Com- See weeks. injury. Valenty of her back because ar- representative concluded that missioner’s gued that she entitled to receive unem- Valenty’s inability to dur- because pursuant ployment benefits to the “serious weeks, ing eligible those two she was exception” disqualification. illness period. benefits for that 268.09, 1(c)(2) (1990). represen- The referee and Commissioner’s record does not conclude the We and, tative considered this claim based that support a determination upon law, applicable proper- the record and to work between unavailable for/unable Valenty testified ly excep- concluded that the illness October serious actively searched for work and that she inapplicable did during period. positions for 11 not make efforts to retain her reasonable (She actually employment as a dental found Concepts. October.) specifi in late She also assistant Now, appeal, time on first Valen- that she could and would cally testified ty claims that she with (in as a dental assistant suit have worked because the was not suit- period, de employment) able for her. Even the issue of suitabili- spite situation, ty major- is relevant in this as the concludes,

ity issue was raised *6 DECISION below and therefore should not be consid- appeal. ered for the first time on attempt at unsuitable brief 858, Wesley Corp., v. Durance 363 N.W.2d during period (Minn.App.1985) (citing 859 Eakman v. disqualify un- does not 95, (Minn.1979)). Brutger, 285 N.W.2d employment because her total determining By at Medical weekly wages from that unsuita- received Valenty, was unsuitable for less than the amount of ble were Although weekly unemployment majority usurped factfinding benefit. has func- representative correct- the Commissioner’s assigned, appropriately, to the referee ly Valenty was unavailable determined that representative. and Commissioner’s 3, 1991, for work on October repre- The referee and Commissioner’s Valenty was record demonstrates that sentative found that was unavail- for work between Octo- to work/available able for work between October ber 4 and injury. 1991 because of her back The rec- part. part and reversed Affirmed supports finding. Valenty this testi- ord probably

fied that she could not have time, as a result of her SCHUMACHER, Judge (dissenting). and would affirm respectfully dissent This court will review commissioner’s unemploy- denial findings light fact most favorable ment benefits. to the decision below and will not disturb off from full- When was laid reasonably them there is evidence assistant, she time a dental employment as tending findings. to sustain those entitled to became and was Inc., Hosp., Ress v. Abbott Northwestern compensation bene- (Minn.1989)(citations 448 N.W.2d however, Valenty accept- Thereafter, fits. omitted). By reversing ed Con- both the referee full-time Inc., 67 N.W.2d 243 Minn. and the Commissioner’s (1954). improperly issue, majority a de- “weighted] evidence ma[d]e preponderance as to where

termination Brother, & v. R.N. Cardozo Nyberg

lies.”