Frost v. Review Bd. of Indiana Employment Sec. Division

• Citation: 432 N.E.2d 459
• Decision Date: 22 March 1982
• Docket Number: No. 2-880A280,2-880A280
• Parties: Dorothy A. FROST, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION and Youngstown Sheet and Tube Company, Appellees (Respondents Below).
• Court: Court of Appeals of Indiana

Page 459

432 N.E.2d 459

Dorothy A. FROST, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION and Youngstown Sheet and Tube Company, Appellees (Respondents Below).

No. 2-880A280.

Court of Appeals of Indiana, Second District.

March 22, 1982.

Albert C. Hand, Hand, Muenich & Wilk, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee Review Board of the Indiana Employment Security Div.

SULLIVAN, Judge.

This appeal is solely from that portion of a Review Board decision which determined that Dorothy A. Frost was overpaid $1,554.00 in unemployment insurance benefits. ¹

The Review Board's determination was premised upon the following facts: Frost was discharged by her employer, Youngstown Sheet & Tube Co. on October 16, 1978. She received unemployment benefits of $74 per week for weeks ending November 18, 1978 through May 19, 1979 totalling $1,628.00. ² Pursuant to Frost's grievance complaint and a resulting arbitration award, however, the discharge was set aside and she was reinstated on May 2, 1979 receiving $7,959 in retroactive wages for the period November 16, 1978 through May 1, 1979.

I.

The issue before us is whether the amount paid to Frost by Youngstown pursuant to the arbitration award constituted "deductible income" under I.C. 22-4-5-1 (Burns Code Ed. 1974). ³ If so, the State is permitted, pursuant to I.C. 22-4-13-1, to recoup the unemployment benefits paid. We affirm.

The Review Board determined that the retroactive wages paid pursuant to an order of the grievance arbitrator were the legal equivalent of an award of back pay by the National Labor Relations Board (NLRB). Accordingly, the Board found such retroactive wages to be "deductible income." Frost argues that the award of the arbitrator here is an award of damages for the wrongful discharge, not an order to pay back wages, and that therefore the collateral source rule entitles her to retain both the arbitrator's award and the unemployment benefits. She further argues that deductible income in the context before us includes only back pay awarded by or made pursuant to an agreement with the NLRB.

A.

The clear language of the arbitrator's award belies Frost's argument that it was an award of damages. The award unequivocally ordered that "the discharge should be set aside and that grievant should be reinstated as a Tester Stenciler, with back pay for all but the first 30 days following her discharge." (emphasis supplied). In addition, Frost is in error when she attributes to the findings and conclusions of the arbitrator a determination that she was wrongfully discharged so as to give rise to an award of damages. The arbitrator merely found that Youngstown had fallen short of sustaining its "serious charge of time card fraud" as the cause for discharge, although Frost was "seriously negligent" in not correcting her time card to accurately reflect the hours worked and in having or permitting someone else to punch her card out some two hours after she had left for the day. The arbitrator did not state that there was not just cause for Frost's discharge. He stated only that Youngstown did not establish the cause alleged for the discharge.

From this we are unable to conclude that the award of back pay was, as a matter of law, an award of damages for wrongful discharge.

To the extent that Frost relies upon the collateral source rule to justify retention of the unemployment benefits as well as the back pay awarded by the arbitrator, it is at least in part dependent upon the premise that the arbitrator's award was for damages, a premise we have hereinabove rejected.

In any event, Frost's reliance upon the collateral source rule as a basis for retaining the unemployment benefits is misplaced. She correctly observes that a wrongdoer may not diminish his liability for damages by partial compensation obtained from a collateral source. Cox v. Winklepleck (1971) 149 Ind.App. 319, 271 N.E.2d 737; Jackson v. Beard (1970) 146 Ind.App. 382, 255 N.E.2d 837. As noted in those cases, the rule precludes a wrongdoer from setting up compensation from a collateral source in mitigation of the damages for which the wrongdoer is responsible. In the case before us, it is the State which seeks recoupment of the benefits paid. The alleged wrongdoer, Youngstown, is not seeking to recoup the back pay awarded by the arbitrator. Therefore, while Frost might argue in the latter instance that Youngstown could not successfully deduct the amount of unemployment benefits from the amount of back pay awarded, we need not decide that question.

B.

Frost looks to the precise language of the statute and argues that it expressly limits deductible back pay awards to those made pursuant to a determination or agreement approved by the NLRB. The legislature's specific reference to NLRB awards of back pay makes her argument at least superficially appealing. The silence of the statute with regard to back pay awarded or gained other than through the NLRB renders arguably appropriate the general premise that when certain items are specified or enumerated in a statute, other items are by implication excluded. Maroon v. State of Indiana, Department of Mental Health (1st Dist. 1980) Ind.App., 411 N.E.2d 404.

While in the instant case there is indeed express enumeration of items of deductible income which does not include back pay achieved through arbitration, there is also a clear and unambiguous directive by the legislature that the enumeration is not exclusive. I.C. 22-4-5-1 contains the clause " '(d) eductible income' ... shall include, but shall not be limited to ..." (emphasis supplied). We deem such to be an expression of legislative intent that...