Jack Nelson Jones Professional Association

October 15-21, 2018

Rivera v. Dir., Dep’t of Workforce Servs., 2018 Ark. App. 436 (Sept. 26, 2018)

 

This matter came on appeal to the Arkansas Court of Appeals from an appeal of a decision to deny unemployment benefits made by the Board of Review of the Arkansas Department of Workforce Services.

 

Luz Rivera appealed from an order of the Arkansas Board of Review (Board) denying her unemployment benefits. The Board had affirmed the decision of the Appeal Tribunal (Tribunal) that denied her benefits upon finding that she had willfully made a false statement or misrepresentation of a material fact, or willfully failed to disclose a material fact when filing a claim for benefits. In its order, the Board also affirmed the Tribunal’s decision declining to reopen Rivera’s case after finding that she did not have good cause for failing to appear at the scheduled hearing on September 6, 2017. On appeal, Rivera challenged the Board’s decision and argued that there was not substantial evidence to conclude that an “omission of $9.60” was a willful false statement, misrepresentation, or failure to disclose and that the Board improperly denied her request to reopen her case based on the hearing that she missed. The Court of Appeals affirmed the Board’s decision to deny benefits.

 

Rivera filed for unemployment benefits on May 19, 2017. In early June, she obtained employment through Dillard’s Dollars, Inc. (Dillard’s). On June 23 a “New Hire Employer Wage Audit” was sent to Dillard’s, which revealed that Rivera was paid $9.60 for work during the week ending June 3, although Rivera had reported no earnings for that period. The audit also showed that, for the previous week ending June 17 Rivera reported earning $234.24, about four dollars less than the $238.80 that she actually earned. Based on this information, the Department of Workforce Services issued a notice of action determining that the $9.60 omission was willful and that it disqualified her from receiving unemployment benefits.

 

Rivera timely filed an appeal, and a telephone hearing was scheduled for September 6, 2017. Rivera did not attend the September 6 hearing in front of the Tribunal. The Tribunal hearing officer found that a preponderance of the evidence indicated that in filing a continued claim for the week ending June 3, 2017, Rivera underreported her wages in order to obtain benefits to which she was not entitled, and it concluded that the omitted $9.60 was a willful false statement, misrepresentation, or failure to disclose. Rivera was, therefore, disqualified from receiving benefits for a total of 16 weeks. The hearing officer did not conclude that the four-dollar error from the week of June 17 was willful.

 

Upon receiving the Tribunal’s decision, Rivera requested that the Tribunal reopen the decision because she had good cause for missing the September 6 hearing. During the good-cause hearing on October 19, 2017, Rivera testified that she received all of her mail at a post office box, which she only checked every two to three weeks. She testified that she did not receive any notification through the online system that she would be receiving a letter, and she testified that she expected communications in that same online format from the Department of Workforce Services. She stated that she had planned to check her mail on August 31, but she was in a car accident on August 30, 2017, and was incapacitated by pain and the medications she was prescribed for her injuries. As a result, she was unable to retrieve her mail until the afternoon of September 6--two hours and forty-five minutes after the hearing was scheduled to begin. The Tribunal found that she did not show good cause and affirmed its decision in the previous appeal.

 

Rivera filed an appeal with the Board and proffered evidence about the omitted $9.60. The Board, nonetheless, affirmed and adopted the Tribunal’s decisions in both appeals. Rivera now appeals to our court.

 

The Court of Appeals noted preliminarily that it does not conduct a de novo review in appeals from the Board. Instead, it only reviews the Board’s findings in the light most favorable to the prevailing party and affirms the Board’s decision if it is supported by substantial evidence. It reiterated it previous holdings that substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion, and, that, even when there is evidence upon which the Board might have reached a different decision, the scope of the judicial review is nonetheless limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence before it. While it observed that its function on appeal was not merely to rubber-stamp decisions arising from the Board, if fair-minded persons could reach the Board’s conclusions on the same evidence, then the Court was obligated to affirm the Board’s decision.

 

On appeal, Rivera argued that the Board’s decisions are not supported by substantial evidence. However, the Court disagreed. It observed that, when Rivera filed for unemployment benefits on May 19, 2017, she was given a handbook that contained information on how to report any earnings. She subsequently obtained employment with Dillard’s, and a wage audit of Rivera’s possible wages earned during her claim period was sent to Dillard’s on June 23, 2017. Dillard’s responded on July 1, showing that Rivera earned $9.60 for the week ending June 3 and $238.80 for the week ending June 17. Rivera had reported that she had no earnings for the week ending June 3 and had earnings of $234.24 for the week ending June 17. The Department of Workforce Services then issued a determination that Rivera did not correctly report her work or earnings for the week ending June 3, 2017. She was disqualified pursuant to the provisions of the governing statute, and the determination was upheld by both the Tribunal and the Board.

 

The Court noted that Rivera failed to report any earnings at all for the week of June 3, 2017. She also failed to appear at the hearing scheduled by the Tribunal to explain why she failed to report earnings for that week. While the Court stated it was sympathetic to Rivera’s plight and the fact she was denied benefits over a mere $9.60 disparity, it was, nonetheless, bound by the applicable standard of review. Moreover, it observed Rivera was aware that she worked for a short period of time the week of June 3 and was given the information in the handbook that required her to report those wages. The failure to report any earnings for that week supports the finding that her actions indicated a willful false statement or misrepresentation of a material fact. The Court noted that there had been no evidence or testimony presented to show that Rivera was unaware that she was required to report her earnings.

 

As to Rivera’s second point on appeal—that substantial evidence did not support the decision that she did not have good cause for failing to appear at the September 6, 2017 hearing—the Court also affirmed. It noted that Rivera did receive the “Notice of Agency Decision” mailed August 9, which had found that she failed to correctly report her earnings for the week of June 3. That notice also contained her appeal rights. In response, Rivera timely filed an appeal to the Tribunal, which was received on August 16. The Tribunal had then sent Rivera a notice mailed August 22, which advised her that a telephone hearing would be held September 6. Rivera did not pick up the letter from her post office box until the afternoon of September 6—after the hearing was over.

 

Rivera requested that the case be reopened based on good cause. However, the Court found that it could not say good cause was shown in this case. She did not check her mail for three weeks. The Court noted that she was in a car wreck on August 30 that prevented her from checking her mail for another week. But, the Court emphasized that the hearing notice was mailed on August 22—eight days before she had her wreck. If she had checked her mail during that time period, she would have been aware of the hearing and would have either been able to participate or request a postponement if her car accident had incapacitated her to the extent that she could not participate in the phone hearing. In light of these findings, the Court held that there was substantial evidence to support the Board’s determination that there was not good cause to reopen Rivera’s case. Accordingly, it affirmed.