Trevor Hogan, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1583

Trevor Hogan,
Relator,

vs.

O’Laughlin Trucking & Excavating, Mechanical LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 7, 2021
Affirmed
Bryan, Judge

Department of Employment and Economic Development
File No. 39852471-3

Karl W. Sonneman, Winona, Minnesota (for relator)

Keri A. Phillips, Anne B. Froelich, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

O’Laughlin Trucking & Exca vating, Mechanical LLC, Wi nona, Minnesota (respondent
employer)

Considered and decided by Johnson, Presid ing Judge; Bryan, Judge; and Frisch,
Judge.

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NONPRECEDENTIAL OPINION
BRYAN, Judge
In this unemployment-compensation appeal , relator raises two challenges to an
unemployment-law judge’s (ULJ) determination that he is ineligib le for unemployment
benefits. First, relator argues that the ULJ applied an incorrect le gal standard when the
ULJ applied the statutory requirements of th e exceptions to ineligib ility. Second, relator
contends that the ULJ erred in making the f actual finding that relator quit on March 23,
2020. Because we conclude that relator forfeited the challenge to the legal standard applied
and that substantial evidence supports the c ontested factual finding, we affirm the ULJ’s
decision.
FACTS
On January 1, 2016, rela tor Trevor Hogan began working as a carpenter for
respondent O’Laughlin Trucking & Excavati ng, Mechanical LLC (the employer). On
April 28, 2020, Hogan applied for unemployment benefits, stating that he was discharged
on April 22, 2020. In response, the employer stated that Hogan was not discharged and
that Hogan voluntarily quit on March 23, 2020. On May 12, 2020, respondent Department
of Employment and Economic Development (DEED) determined that the employer
discharged Hogan on Ma rch 23, 2020, and that Hogan was eligible for unemployment
benefits. The employer appealed that dete rmination. Following a hearing, the ULJ
determined that Hogan was ineligible fo r unemployment benefits. Hogan requested
reconsideration and the ULJ affirmed its de cision. Given the issues on appeal, we

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summarize the facts from the hearing, the UL J’s ineligibility determination, and Hogan’s
request for reconsideration.
At the hearing, the ULJ received testimony from Hogan and the employer’s
president, Kyle O’Laughlin. Both testified that Hogan generally worked at least 32 hours
per week in carpentry and on other tasks as requested. Hogan was required to report to the
employer’s shop at the beginning of each wo rk day, and from there, the employer would
direct Hogan to a particular work site. Hogan would then drive alone in a company vehicle
to the work site. On March 23, 2020, Hogan worked at three sites, the last of which
involved remodeling a bathroom. Hogan worked for 45 minutes at the site but was unable
to finish the work because the owners of the unit decided to quarantine due to COVID. In
their testimony, both O’Laug hlin and Hogan agreed that this was the last day Hogan
performed any work. They disagreed, howe ver, regarding what happened when Hogan
returned to the shop.
According to Hogan, he told O’Laughlin that he was scared of COVID because he
did not know how his body woul d react to it and that he was going to sign up for
unemployment. Hogan stated that O’Laughlin sent him home at that point, and told him
that there was no work for the following week. Hogan also testified he did not provide a
doctor’s note when requested because he could not afford to go see a doctor and wanted to
take a picture of his medication instead. O’Laughlin’s testimony contradicted Hogan’s
account of events on March 23, 2020. O’Laughlin testified that he was at home taking care
of his child and not at the shop. In addition, O’Laughin testified that Hogan actually met
with the project manager and did not speak to O’Laughlin that day. O’Laughlin recollected

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that Hogan told the project manager that H ogan was going to sign up for unemployment.
O’Laughlin further testified that the project manager had no authority to discharge anyone
and that contrary to Hogan’s testimony, Hogan could have worked the rest of that week if
he had wanted to.
The parties also testified to the genera l working conditions and the events that
occurred after March 23, 2020. O’Laughlin explained that the employer had implemented
protocols to reduce the risk of transmission. For instance, the employer encouraged social
distancing and stocked masks in a supply room at the shop as well as in the vehicles that
Hogan and others drove to work sites. O’La ughlin testified that on March 31, 2020, he
called Hogan to determine whether Hogan in tended on ever coming back to work.
According to O’Laughlin, Hogan answered that he was nervous and scared about COVID.
O’Laughlin then told Hogan, “you’re working by yourself,” but Hogan refused to come to
work because Hogan did not want to be around people. O’Laughlin again contacted Hogan
on April 9, 2020, and told him that the employer had work for him if he wanted to come
back to work. Hogan declined, saying that he was not coming back until COVID was gone
and that he had chronic asthma. O’Laughlin testified that this was news to him and asked
Hogan to provide a doctor’s note stating that he could not wo rk. Hogan never did. The
following week, O’Laughlin again contacted Hogan requesting that he return to work, but
Hogan did not show up.
On April 20, 2020, O’Laughl in made contact with Hoga n again and at this time,
Hogan was willing to come back to work. Hogan testified that he asked O’Laughlin about
COVID, and that O’Laughlin to ld him that the employer was taking it seriously and that

5
there would be masking and soci al distancing. On April 22, 2020, Hogan arrived at the
shop and drove out to a work site. Hogan testified that he returned to the shop shortly after
because there were no safety measures bei ng practiced at the work site. Hogan told
O’Laughlin that he could not work in such an environment, and following a verbal
altercation, Hogan left the shop. Hogan testified that he di d not clock his hours that day
because he “didn’t do anything for them.”
Following the hearing, the ULJ determined that “[t]o the extent their testimony is in
disagreement, [O’Laughlin’s] testimony is more credible than Hogan’s testimony, because
it is a more likely explanation of events,” and “because it is more reliable and specific on
dates and times.” The ULJ found that, in mid-March 2020, the employer had masks
available in the safety supply room, Hogan had masks in his vehicle, and Hogan had used
masks in the past. The ULJ found that on March 23, 2020, “Hogan told the project manager
he was filing for unemployment and then stopped showing up for ongoing available work”;
that “Hogan never returned to work”; and th at on April 22, 2020, Hogan told O’Laughlin
he had quit. The ULJ also found that, on March 23, 2020, “Hogan quit because he wanted
to be on unemployment and not work during the COVID-19 pandemic.”
Having determined that Hogan quit employment on March 23, 2020, the ULJ then
considered whether Hogan was eligible for unemployment benefits based on either the
medical or good cause excep tion. The ULJ determined th at “Hogan’s testimony about
having asthma is not credible, because it is not corroborated by any reliable evidence and
a negative inference is taken from his refusal to get any documentation for the employer.”
The ULJ found that “[i] t was not medically necessary for Hogan to quit. Hogan did not

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inform the employer of any medical problem and did not ask for an accommodation before
he quit.” Thus, the ULJ concluded that th e medical exception enumerated at Minnesota
Statutes section 268.095, subdivision 1(7) (2020), did not apply. The ULJ also concluded
that the good cause exception enumerated at Minnesota Statutes section 268.095,
subdivision 3 (2020), did not apply because the employer did not treat Hogan in a manner
that would compel an averag e reasonable worker to quit, there was no evidence the
employer was violating any government regula tions or orders about COVID, and Hogan
was allowed to wear safety equipment and social distance. A ccordingly, the ULJ
determined that Hogan was ineligible for unemployment benefits.
On June 9, 2020, Hogan requested rec onsideration, arguing that the ULJ made
incorrect findings of fact. Specifically, Hogan made the following arguments: (1) the ULJ
erred in finding that Hogan quit employmen t on March 23, 2020, because the employer
called him regarding work on April 9 and 20, 2020; (2) the ULJ erred in finding that Hogan
never returned to work because he was at the workplace on April 22, 2020; (3) the ULJ
erred in finding that it was not medically ne cessary for Hogan to qu it based on evidence
that had not been presented previously (an attached doctor’s note indicating that Hogan has
asthma and hypertension); and (4) the ULJ erred in finding that the employer had
continuing work for Hogan after March 23, 2020, because he was required to stay at home
pursuant to the governor’s stay-at-home order, see Emerg. Exec. Order No. 20-20,
Directing Minnesotans to Stay at Home (Mar. 25, 2020) (EEO 20-20).
On November 23, 2020, the ULJ affirmed its decision. The ULJ reasoned, “Hogan
does not show the new evidence would likely change the outcome of the decision and does

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not show there was good cause for not having previously submitted that evidence.” The
ULJ also stated that Hogan did not explain how the EEO 20-20 and the CARES Act “apply
to his separation” and determined that “[t]here is no evidence that a health care professional
or health authorities recommende d Hogan should self-isolate or self-quarantine due to
elevated risk from COVID-19.” Thus, the ULJ concluded that “[t]he evidence supports the
decision and it is affirmed as factually and legally correct.” This certiorari appeal follows.
DECISION
I. Correct Legal Standard
Hogan argues that the ULJ erred by appl ying the statutory requirements for the
exceptions to ineligibility. Instead, Hogan argues a different, but undefined, legal standard
applies. Because Hogan did not challenge th e legal standard or the applicability of the
statutory requirements before the ULJ, we conclude that Hogan forfeited this argument.
“An applicant who quit employment is inel igible for all unemployment benefits,”
subject to several exceptions. Minn. Stat. § 268.095, subd. 1 (2020). Each exception
requires establishment of certain facts and elements. E.g., id., subds. 1(1) (establishing
exception for good reason caused by the employ er), 1(7) (establishing exception for and
listing requirements for exception due to se rious illness or medical necessity), 3(a)-(g)
(listing requirements for th e good cause exception); Werner v. Med. Pros. LLC , 782
N.W.2d 840, 842 (Minn. App. 2010) (applying statutory requirements to a claim under the
good cause exception), rev. denied (Minn. Aug. 10, 2010); Madsen v. Adam Corp. , 647
N.W.2d 35, 38-39 (Minn. App. 2002) (apply ing statutory requirements to a claim under
the medical necessity exception). Whether th e ULJ applied the correct legal standard

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presents a question of law, which we review de novo. See Am. Bank of St. Paul v. City of
Minneapolis, 802 N.W.2d 781, 785 (Minn. App. 20 11) (acknowledging that whether the
district court applied the proper legal standard is subject to de novo review).
In March 2020, the governor declared a peacetime emergency pursuant to his
authority under the Minnesota Emergency Management Act of 1996, Minn. Stat. §§ 12.01-
.61 (2020). Emerg. Exec. Order No. 20-01, Declaring a Peacetime Emergency &
Coordinating Minnesota’s Strategy to Protect Minnesotans from COVID-19 (Mar. 13,
2020). On March 16, 2020, the governor i ssued Emergency Executive Order No. 20-05,
Providing Immediate Relief to Employers & Unemployed Workers During the COVID-19
Peacetime Emergency (Mar. 16, 2020) (EEO 20-05). On March 25, the governor issued
the stay-at-home order, EEO 20-20. EEO 20-05 modified provisions of the unemployment
statute to help mitigate the consequences of the COVID-19 pandemic on workers and
employers. EEO 20-05 paragraph 1 states: “Effective immediately, strict compliance with
Minnesota Statutes 2019, Chapter 268, Mi nnesota Unemployment Insurance Law is
suspended.” For the first time, Hogan argues on appeal that EEO 20-05 not only suspended
procedural deadlines, but also suspended the substantive statutory requirements that apply
in order to satisfy the exceptions for good cause and medical necessity.1 A party, however,
cannot raise a new issue on appeal, “[n] or may a party obtain review by raising the same
general issue litigated below but under a different theory,” and this court generally will not

1 Hogan does not argue that he satisfied the statutory requirements for these exceptions.
Instead, he argues that the ULJ erred in applying the requirements to his claim.

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consider matters not argued to and considered by the ULJ. Thiele v. Stich , 425 N.W.2d
580, 582 (Minn. 1988).
Hogan raised several arguments before th e ULJ and articulated additional reasons
in support of his request for reconsideration. Hogan did not, however, make the argument
that he now presents to this court. We acknowledge that Hogan generally referenced EEO
20-20 and the CARES Act in his request for re consideration, but these general references
were made in the context of Hogan’s challenge to the employer’s claim that it had available
work for Hogan after March 23, 2020. Hogan did not request reconsideration on the basis
that the ULJ applied the wrong legal standard . Hogan made no reference to EEO 20-05.
Nor did he otherwise argued that the statutory requirements should no longer apply. Based
on our review of the arguments raised below, H ogan accepted the a pplicability of the
statutory requirements for the exceptions. Therefore, we deem the first argument presented
to this court as forfeited and decline to address it further.
II. Quit Date
Hogan also argues that the ULJ erred in its factual determinati on that he quit his
employment on March 23, 2020. 2 Because there is substa ntial evidence supporting the
ULJ’s determination, we cannot conclude that the ULJ erre d in determining that Hogan
quit employment on March 23, 2020.
“A quit from employment occurs when the decision to end the employment was, at
the time the employment ended, the employee’s.” Minn. Stat. § 268.095, subd. 2(a) (2020).

2 Although Hogan argued to the ULJ that he was involuntarily discharged, Hogan does not
challenge the factual finding that he voluntarily quit his employment on appeal.

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“An employee cannot ‘unintentionally’ quit employment.” Posey v. Securitas Sec. Servs.
USA, Inc., 879 N.W.2d 662, 667 (Minn. App. 2016); see also Minn. Stat. § 268.095, subd.
2(b) (2020) (“When determining if an applicant quit, the theory of a constructive quit does
not apply.”). The test for determining whether an employee has voluntarily quit is whether
the employee directly exercises a free-w ill choice to leave the employment. See Posey,
879 N.W.2d at 665 (c oncluding that “the unemployment-benefit statute’s definition of
‘quit’ and the free-will-choice test are essentially identical”).
Whether an employee voluntarily quit em ployment is a question of fact. Hayes v.
K-Mart Corp. , 665 N.W.2d 550, 55 2 (Minn. App. 2003), rev. denied (Minn. Sept. 24,
2003). “This court reviews a ULJ’s findings of fact in a light most favorable to the
decision, and will not disturb the findings so long as there is evidence in the record that
substantially supports them.” Gonzalez Diaz v. Three Rivers Cmty. Action, Inc. , 917
N.W.2d 813, 815-16 (Minn. App. 2018). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as ad equate to support a conclusion.” Posey, 879
N.W.2d at 665 (quotation omitted). This court does not reweigh conflicting evidence and
defers to ULJ’s credibility determinations. See Landmark Cmty. Bank, N.A. v. Klingelhutz,
927 N.W.2d 748, 755 (Minn. App. 2019).
In this case, the issue is not whether Ho gan quit, but when. Hogan argues that the
ULJ’s finding that Hogan quit on March 23, 2020, is in error because the employer
continued to call Hogan, asking him to return to work. In addition, Hogan emphasizes the
fact that he returned to work on April 22, 2020, when he went to the employer’s shop and
drove to a work site. Hogan argues that these facts support a finding that he quit on April

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22, 2020. Hogan relies on an in terpretation of our holding in Posey to support this
argument. We are not convinced for tw o reasons. First, we disagree that Posey compels
reversal in this case. In Posey, the employee informed her employer that she could no
longer work at one, specific work site for a client, and afterw ard did not return to work.
Posey, 879 N.W.2d at 664. We concluded that substantial evidence did not support the
ULJ’s finding that the employee quit because we distinguished between one’s refusal to
work at one particular work site and one’s refusal to work altogether. Id. at 667. The facts
of this case are quite different from those in Posey. Hogan did not refuse to work at a
particular site or for a particular client. In stead, Hogan stated that he was signing up for
unemployment and then stopped showing up for work altogether. The important
distinction in Posey is absent from the facts in this case.
Second, Hogan’s argument misstates the standard of review. Hogan argues that the
record supports a finding that he did not quit until April 22, 2020. Our standard of review,
however, is not whether the record supports an alternative finding. Rather than reweighing
conflicting evidence, we review the record in the light that is most favorable to the ULJ’s
decision. On March 23, 2020, Hogan informed a project manager that he was going to sign
up for unemployment, and left work. Hogan doe s not dispute that he said he intended to
sign up for unemployment. Nor does Hogan di spute the actual finding that he stopped
showing up for work after March 23, 2020, and did not return until April 22, 2020, when
he left without performing any work. Stating his intent to sign up for unemployment,
leaving the work site, and not returning to work for a month constitutes substantial evidence

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to support the ULJ’s finding that Hogan quit his employment on March 23, 2020. For these
reasons we affirm the challenged factual finding.
Affirmed.