Maureen McCulloch, 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This opinion is nonprecedential except as provided by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
A21-1367

Maureen McCulloch,
Relator,

vs.

William K. Swanstrom,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 1, 2022
Affirmed
Cochran, Judge

Department of Employment and Economic Development
File No. 45281728-3

Thomas H. Boyd, Winthrop & Weinstine, P.A., Minneapolis, Minnesota (for relator)

William K. Swanstrom, Duluth, Minnesota (respondent employer)

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

Considered and decided by Reilly, Presiding Judge; Cochran, Judge; and
Kirk, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
COCHRAN, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) that she was
ineligible for unemployment benefits because she quit her employment and does not meet
a statutory exception to ineligibility based on a quit. Relator argues that the ULJ erred by
(1) determining that she was not eligible for state unemployment benefits under the
medical-necessity exception; (2) failing to grant her benefits for equitable reasons; and
(3) failing to consider whether she was eligible for federal pandemic-related benefits even
if she was not otherwise eligible to receive state unemployment benefits.
We first conclude that the ULJ did not err in determining that the medical-necessity
exception was not satisfied in this case. We next conclude that reversal is not permitted on
equitable grounds. Finally, we conclude that the issue of relator’s eligibility for federal
pandemic-related benefits is not properly before us. We therefore affirm.
FACTS
Relator Maureen McCulloch was employed full time as a care provider for
respondent-employer William Swanstrom from November 2019 through February 16,
2020. McCulloch quit her employment in February 2020. McCulloch’s reason for quitting
was to move to Connecticut to care for her mother. She did not ask Swanstrom for time
off or another accommodation before she quit.
McCulloch applied for unemployment benefits through respondent Minnesota
Department of Employment and Economic Development (DEED). In March 2021, a
DEED administrative clerk issued a determination of ineligibility. The determination
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stated that McCulloch was ineligible for unemployment benefits because she quit her
employment “to relocate for personal reasons” and did not meet any of the statutory
exceptions. McCulloch appealed the determination of ineligibility, and a de novo hearing
was held before a ULJ in May 2021.
At the hearing, McCulloch elaborated on her reason for quitting her employment.
McCulloch testified that her father had passed away earlier in the year, and she wanted to
relocate to assist her mother, who was “elderly,” in anticipation of the impeding COVID-19
pandemic. McCulloch acknowledged that her mother did not have a specific medical
condition that required care, but she said that she was moving to be her mother’s “personal
assistant to the outside world.” She testified that her mother needed “assistance and care
at the home so she didn’t have to leave.” McCulloch indicated that she would have
relocated to Connecticut even if there were not concerns about the impending pandemic.
After the evidentiary hearing, the ULJ issued findings of fact and a decision,
determining that McCulloch was ineligible for unemployment benefits because she quit
her employment and no statutory exception applied. The ULJ considered the
medical-necessity exception under Minn. Stat. § 268.095, subd. 1(7) (2020). The ULJ
determined that McCulloch did not meet the requirements of that exception because the
record did not show that McCulloch’s mother had any specific medical condition or that it
was medically necessary for McCulloch to care for her mother. The ULJ also found the
medical-necessity exception was not met because McCulloch did not request an
accommodation from Swanstrom before she quit. The decision resulted in McCulloch
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being charged with an overpayment in the amount of $8,970 for unemployment benefits
she had received prior to the decision.
McCulloch requested reconsideration. She argued that it was medically necessary
for her to care for her mother because of the impending pandemic. McCulloch asserted
that her mother was 72 years old at the time, had “a history of pneumonia, asthma[,] and
high blood pressure,” and was “crippled with fear” because of the media’s reporting on the
COVID-19 virus. McCulloch also stated that she was following expert medical
recommendations by choosing to care for her mother, who was “medically compromised.”
The ULJ affirmed the earlier decision. The ULJ noted that, in support of her request
for reconsideration, McCulloch sought to submit evidence that she did not present at the
time of the hearing. The ULJ declined to receive the additional evidence into the record,
determining that there was no good reason McCulloch could not have presented it at the
hearing. The ULJ also determined that the evidence would not likely change the outcome
of the decision. Accordingly, the ULJ concluded that the decision was factually and legally
correct.
McCulloch appeals by writ of certiorari.
DECISION
McCulloch challenges the ULJ’s decision determining that she is ineligible for
unemployment benefits. When reviewing the ULJ’s decision, we may affirm the decision
or remand for further proceedings. Minn. Stat. § 268.105, subd. 7(d) (2020).
Alternatively, we may reverse or modify the ULJ’s decision when the relator has been
5
prejudiced because the decision, among other things, is affected by an error of law or not
supported by substantial evidence in the record. Id., subd. 7(d)(4)-(5).
We review the ULJ’s factual findings in the light most favorable to the decision.
Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). We will not disturb
those findings “as long as there is evidence in the record that reasonably tends to sustain
them.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether the
ULJ’s findings show that the applicant meets a statutory exception to ineligibility for
quitting employment is a question of law, which we review de novo. See Peppi v. Phyllis
Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000) (applying de novo review
to determine whether applicant met exception for good reason to quit caused by employer).
McCulloch argues that the ULJ erred by: (1) determining that she did not satisfy the
medical-necessity exception; (2) determining that she was ineligible for benefits despite
there being an equitable reason for granting benefits—her reliance on the ULJ’s statement
in a previous decision involving a different employer; and (3) failing to consider whether
she was eligible for federal pandemic-related benefits even if she was not eligible for state
unemployment benefits. We address each argument in turn.
I. The record supports the ULJ’s determination that McCulloch did not satisfy
the medical-necessity exception.

An applicant who quits employment is ineligible for unemployment benefits unless
an enumerated statutory exception applies. Minn. Stat. § 268.095, subd. 1 (2020). The
only exception at issue here is the medical-necessity exception. Id., subd. 1(7). To satisfy
the medical-necessity exception based on care for a family member, an applicant must meet
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two requirements: (1) the applicant quit employment “in order to provide necessary care
because of the illness, injury, or disability of an immediate family m ember of the
applicant”; and (2) “the applicant informs the employer of the medical problem and
requests accommodation and no reasonable accommodation is made available.” Id.,
subd. 1(7)(ii) (emphasis added). The ULJ determined that McCulloch did not satisfy either
requirement. McCulloch argues that the ULJ erred by concluding the medical-necessity
exception was not met. We are not persuaded.
Evidentiary Record on Review
We begin our analysis by addressing what evidence we may properly consider in
our review of the ULJ’s determination that the medical-necessity exception was not met .
In her brief, McCulloch asserts that her mother had a “disability,” within the meaning of
the exception, because her mother was 72 years old, had high blood pressure and a history
of asthma, and was fearful of the impending pandemic. But McCulloch did not present
any evidence of these facts at the hearing before the ULJ. Instead, she first submitted this
evidence in her request for reconsideration. In deciding the request for reconsideration, the
ULJ declined to receive the additional evidence into the record and affirmed the previous
decision based on the evidence submitted at the hearing. See Minn. Stat. § 268.105,
subd. 2(c) (2020) (“In deciding a request for reconsideration, the unemployment law judge
must not consider any evidence that was not submitted at the hearing, except for purposes
of determining whether to order an additional hearing.”).
1 The evidence that McCulloch

1 McCulloch does not challenge the ULJ’s decision declining to hold an additional hearing
on her request for reconsideration.
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presented in support of her request for reconsideration is not part of the record on which
we must base our review of the ULJ’s determination that the medical-necessity exception
was not met, and we do not consider it. See Appelhof v. Comm’r of Jobs & Training,
450 N.W.2d 589, 591 (Minn. App. 1990) (“[E]vidence which was not received below may
not be reviewed as part of the record on appeal.”). For this reason, we limit our review of
the record to the evidence developed at the hearing.
Evidence of Illness, Injury, or Disability
When we consider the evidence that was before the ULJ at the hearing, we conclude
that the record supports the ULJ’s finding that McCulloch’s mother did not have an illness,
injury, or disability that made it medically necessary for McCulloch to quit to provide care
for her mother. At the hearing, McCulloch expressly acknowledged that her mother did
not have a specific medical condition that required care. Rather, according to McCulloch,
her mother needed assistance because she was “elderly” and was concerned about the
impending pandemic. McCulloch seems to argue that being “elderly” equates with having
a “disability.” We disagree.
The term “disability” as used in the medical-necessity exception is not defined in
the statute, but one common meaning of the term is “a physical or mental impairment that
interferes with or prevents normal achievement in a particular area.” The American
Heritage Dictionary of the English Language 513 (5th ed. 2018); see also Hagen v. Steven
Scott Mgmt., Inc., 963 N.W.2d 164, 173 (Minn. 2021) (recognizing that, when a statute
does not define a term, appellate courts may refer to dictionary definitions to determine
plain meaning). Although people who are elderly often suffer from physical or mental
8
impairments that limit their mobility, we are aware of no case law supporting the position
that growing older constitutes a per se disability. And, as a matter of common experience,
people may be able-bodied even in old age. Consequently, McCulloch’s testimony does
not establish that her mother had an “illness, injury, or disability,” within the meaning of
the medical-necessity exception. McCulloch cannot satisfy the first requirement of the
exception.2
Evidence of a Request for an Accommodation
McCulloch also cannot satisfy the second requirement of the medical-necessity
exception, which requires that she requested an accommodation before quitting.
McCulloch acknowledged at the hearing before the ULJ that she did not ask Swanstrom
for time off or another accommodation. But she argues on appeal that she should still meet
the medical-necessity exception because it would have been futile to request an
accommodation.
McCulloch’s position is inconsistent with the plain language of the statute and this
court’s case law. The statute provides that the medical -necessity exception “only applies
if the applicant informs the employer of the medical problem and requests
accommodation.” Minn. Stat. § 268.095, subd. 1(7) (emphasis added). Nothing in the

2 We note that, even if we considered the evidence that McCulloch first submitted with her
request for reconsideration, we question whether she would satisfy this requirement of the
medical-necessity exception. The additional evidence McCulloch submitted did not show
that her mother had a specific physical or mental impairment that rendered her disabled.
We are hesitant to interpret the statute so broadly as to mean that an immediate family
member has a “disability” based merely on old age, general fearfulness of the pandemic,
and underlying conditions that make her more susceptible to illness.
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language of the statute suggests that an applicant is excused from requesting an
accommodation before quitting even in circumstances in which it is highly unlikely that an
employer would have granted an accommodation. While we acknowledge that a request
for an accommodation in this case may have been futile, we are not free to disregard the
requirement that an applicant request an accommodation. Appellate courts cannot add
words to an unambiguous statute. County of Dakota v. Cameron, 839 N.W.2d 700, 709
(Minn. 2013).
Moreover, in prior nonprecedential cases, we have rejected arguments similar to
McCulloch’s. See Cripe-Scherek v. MNKase LLC, No. A14-1320, 2014 WL 7237386, at
*2 (Minn. App. Dec. 22, 2014) (stating that a request for accommodation “is a prerequisite
to the application of the medical-necessity exception” and that the statute “does not leave
room for a reasonableness exception”); Fleming v. G&G Septic, LLC, No. A10-226, 2010
WL 4941614, at *2 (Minn. App. Dec. 7, 2010) (rejecting relator’s argument that requesting
an accommodation was “pointless” because he was going to be laid off soon, and stating
that the plain language of the medical-necessity exception required an applicant to request
an accommodation). While not precedential, the reasoning in these cases is persuasive.
See Kruse v. Comm’r of Pub. Safety, 906 N.W.2d 554, 559 (Minn. App. 2018) (recognizing
that unpublished opinions are not precedential but may be persuasive). Because
McCulloch did not actually ask Swanstrom for an accommodation—even if doing so would
have been futile—she does not satisfy the second req uirement of the medical-necessity
exception.
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We recognize that McCulloch put the needs of her family first in choosing to care
for her mother. It is certainly reasonable for a person to want to quit their employment to
provide assistance to a family member in circumstances like these. But the question before
us is whether McCulloch meets the criteria in the unemployment-benefits statute, and in
doing so, we are bound by the language of the statute. The medical-necessity exception
does not contemplate a situation like this one in which the applicant quits employment to
provide care to an immediate family member to prevent that person from sustaining an
illness, even in the face of an impending pandemic. Applying the statute as it is written,
we conclude that the ULJ did not err by determining that McCulloch does not satisfy the
requirements of the medical-necessity exception.
II. McCulloch is not eligible for unemployment benefits on equitable grounds
based on her reliance on the ULJ’s decision involving a different employer.

McCulloch also seems to argue that it would be inequitable to deny her
unemployment benefits given her reliance on a previous ULJ decision regarding her
part-time employment with another employer , Heartland PCA. McCulloch worked part
time for Heartland as a personal-care assistant while she was working full time for
Swanstrom. She quit her employment with Heartland on February 29, 2020, in anticipation
of her move to Connecticut, and later applied for unemployment benefits arising from her
separation from Heartland. In July 2020, a DEED administrative clerk issued a
determination of ineligibility in the case file involving Heartland. 3 After an evidentiary

3 Because McCulloch worked for two employers before quitting, DEED issued separate
determinations for each employer—Heartland and Swanstrom—and those determinations
came several months apart. According to DEED, the reason separate determinations were
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hearing on that matter, a ULJ issued a decision on October 27, 2020. In that decision, t he
ULJ determined that McCulloch potentially met the statutory exception for eligibility under
Minn. Stat. § 268.095, subd. 1(5), which applies to a part-time applicant who also had full-
time employment in the “base period” sufficient to meet the minimum requirements to
establish a benefit account and the applicant separated from full-time employment because
of reasons that would not make the applicant ineligible. The Heartland decision further
specified that “McCulloch is eligible for unemployment benefits if she meets all other
eligibility requirements.” (Emphasis added.)
On appeal, McCulloch argues that she “relied on” the Heartland determination and
continued to collect benefits until the ULJ determined that she was ineligible for
unemployment benefits in the current case involving Swanstrom. Given her reliance on
the prior decision, she argues that the ULJ erred by determining that she was ineligible for
unemployment benefits in this case. We are not persuaded.
Minnesota unemployment law does not permit a ULJ to grant benefits or determine
eligibility based on equitable reasons. The legislature has expressly provided that “[t]here
is no equitable or common law denial or allowance of unemployment benefits.” Minn.
Stat. § 268.069, subd. 3 (2020). Allowing for benefits based on reliance on the Heartland
decision would be an equitable remedy and therefore is not permitted. Moreover, as noted

issued is that, when McCulloch first applied for unemployment benefits, she listed
Heartland as an employer but did not include Swanstrom. According to McCulloch, she
did not originally include her employment with Swanstrom because the wage information
for her employment with Swanstrom was not requested until June 2020. When her
employment with Swanstrom was eventually reported, McCulloch learned that she was
potentially eligible for additional unemployment benefits based on that employment.
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above, the Heartland decision did not guarantee benefits but stated that McCulloch “is
eligible for unemployment benefits if she meets all other eligibility requirements.”
(Emphasis added.) This language indicated that McCulloch’s eligibility for unemployment
benefits was not definite, but rather was contingent on her meeting other eligibility
requirements. McCulloch is not entitled to employment benefits based on her reliance on
the decision in the Heartland case file.
III. The issue of McCulloch’s eligibility for federal pandemic-related benefits is not
properly before this court.

Finally, McCulloch argues that the ULJ erred by failing to consider whether she was
eligible for federal pandemic-related benefits under the Pandemic Unemployment
Assistance (PUA) program. The Coronavirus Aid, Relief, and Economic Security Act
(CARES Act) authorized PUA payments if an individual was “not eligible for regular
compensation or extended benefits under State or Federal law,” and the individual was
“otherwise able to work and available for work” but was unemployed because of one of
several pandemic-related reasons. 15 U.S.C. § 9021(a)(3)(A) (2020). McCulloch argues
that she met the eligibility requirements for PUA benefits, and she urges us to remand with
instructions for the ULJ to consider the amount of PUA benefits to which she was entitled.
DEED argues that Mc Culloch’s eligibility for PUA benefits is not properly before
this court because the issue was not decided below. We agree. This court generally does
not consider issues that were not presented and considered before the ULJ. Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988); Peterson v. Ne. Bank—Minneapolis, 805 N.W.2d 878,
883 (Minn. App. 2011) (applying Thiele in unemployment-benefits appeal and declining
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to review an issue that a party failed to raise before the ULJ). McCulloch did not raise the
issue of PUA benefits at the hearing before the ULJ or in her request for reconsideration,
and the ULJ did not decide the issue. DEED also asserts in its brief that “[a] separate,
appealable determination regarding McCulloch’s eligibility for PUA benefits was mailed
to McCulloch,” and that McCulloch could appeal that determination if she disagreed with
it. Thus, McCulloch may properly address the issue of PUA benefits through the
appropriate appeal process in that proceeding.
Affirmed.