Hunt v. Director

Lori HUNT v. DIRECTOR, Employment Security
Department

E 95-97                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 30, 1997


1.   Employment security -- Board of Review's findings of fact --
     factors considered on review. -- On appeal, the findings of
     fact of the Board of Review are conclusive if they are
     supported by substantial evidence; substantial evidence is
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion; the court of appeals reviews
     the evidence and all reasonable inferences deducible therefrom
     in the light most favorable to the Board's findings; the 
     review is limited to a determination of whether the Board
     could reasonably reach its decision upon the evidence before
     it.

2.   Employment security -- sum due was total benefits appellant
     received while disqualified -- determination of Board of
     Review affirmed. -- The determination of the Board of Review
     was supported by substantial evidence where it found that Ark.
     Code Ann.  11-10-532(a)(1) (Repl. 1996) and Ark. Code Ann. 
     11-10-519(2)(A) (Repl. 1996), when read together, required
     that a finding of fraud disqualified appellant from receiving
     any benefits during that period; the Board of Review's
     determination that since it was undisputed that appellant had
     received benefits, she was bound to return those benefits in
     their entirety, was affirmed; her disqualification based upon
     fraud compelled this determination. 


     Appeal from the Arkansas Board of Review; affirmed.
     Easley, Hicky, Cline & Hudson, by:  Preston G. Hickey, for
appellant.
     Phyllis Edwards, for appellee.

     John B. Robbins, Chief Judge.
     Appellant Lori Hunt appeals the decision of the Board of
Review, which allowed the Employment Security Division to recoup
overpayments previously made to her.  She applied for and was
awarded unemployment compensation benefits for a period of twenty-
four (24) weeks.  Incorrect reports of income by appellant while
she was receiving benefits resulted in an overpayment to her. 
Fraudulent misreporting was attributed to appellant.
     She appealed the determination of fraud and the amount of
overpayment to the Appeal Tribunal, and after affirmation, to the
Board of Review.  The Board of Review determined (1) that the
finding of fraud was final as it had not been timely appealed, and
(2) that the Arkansas Employment Security Department's calculation
of overpayment was correct.  This appeal resulted.
     On appeal, the findings of fact of the Board of Review
are conclusive if they are supported by substantial evidence. 
George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). 
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.  Id.  We review
the evidence and all reasonable inferences deducible therefrom in
the light most favorable to the Board's findings.  Id.  Our review
is limited to a determination of whether the Board could reasonably
reach its decision upon the evidence before it.  Id.
     The record reveals that appellant was employed by the Daggett
Law Firm in Marianna, Arkansas, but was terminated in June 1992.
Upon termination, she qualified for and began drawing unemployment
benefits.  During the period of benefits, she obtained variable
employment that reduced the amount of unemployment benefits to
which she was entitled.  Appellant admits that some weeks she
unintentionally reported net income instead of gross income. 
Appellant asserts that she overreported income during some benefit
periods to make up for underreporting errors.  The record reflects
that she did not go to the local employment security office to
clear up misreportings.  The variations in income resulted in an
actual benefit overpay of $548.00, according to her computation. 
Appellant agrees that she owes monies, but she denies that appellee
correctly calculated the amount owed.  Appellant asserts that by
her calculation she owes $548.00 in actual benefit overpay, whereas
appellee found that she owes $1,365.00, the total weekly benefits
she received during fraudulent report periods.
     The appeal before us is confined only to the issue of whether
overpayment is due; the fraud determination is not properly before
us.  On September 8, 1994, appellant was mailed a determination
that she had been disqualified based upon a finding of fraud.  On
September 22, 1994, a notice of fraud overpayment determination was
mailed.  Each notice letter included the standard appeal time limit
of twenty days.  Appellant's notice of appeal was filed on October
10, 1994.  Therefore, notice of appeal was timely filed as to the
overpayment determination, but not as to the fraud determination. 
The Board of Review stated in its opinion:  "The controlling issue
of fact in this overpayment matter is whether the claimant received
the benefits at issue."  Appellant admits she received all her
benefit checks.  The Board affirmed the lower tribunal in finding
that appellant did receive the unemployment benefits during the
period she had fraudulently reported income.
     Appellant believes that the applicable statute should be
construed to only require repayment of the actual amount of
overpayment after calculating unreported income.  Appellee
maintains that the Board of Review was correct and that the
statutes in Title 11, Chapter 10, read together, require that a
finding of fraud disqualifies appellant from receiving any benefits
during that period.  Appellee refers us to Ark. Code Ann.  11-10-
519(2)(A) (Repl. 1996), which provides that a claimant shall be
disqualified from benefits for any week as to which the claimant
has willfully made false representations.  Also pertinent to this
case, and cited by both parties, is Ark. Code Ann.  11-10-
532(a)(1) (Repl. 1996), the statute on recovery of benefits, which
states:
          If the Director of the Arkansas Employment Security
     Department finds that any person has made a false
     statement or misrepresentation of a material fact knowing
     it to be false or has knowingly failed to disclose a
     material fact and as a result of either action has
     received any amount as benefits under this chapter to
     which he was not entitled, then the person shall be
     liable to repay the amount to the fund, or in lieu of
     requiring repayment, the director may recover the amount
     by deductions from any future benefits payable to the
     person under this chapter.  (Emphasis added).
Reading these two statutes together, the Board of Review determined
that since it was undisputed that appellant had received benefits,
she was bound to return those benefits in their entirety.  Her
disqualification based upon fraud compelled this determination.  It
is beyond the scope of this appeal for appellant to argue whether
her misrepresentations were intentional or not.
     We agree that the sum due was the total benefits she received
while disqualified.  Appellant cites no legal authority other than
the text of Ark. Code Ann.  11-10-532 (Repl. 1996) to persuade us
otherwise.  The interpretation advanced by appellant would provide
no deterrent to fraudulent reports.  Furthermore, such an
interpretation would create a disharmony within a chapter of our
statutes dealing with employment security law.  This result would
be undesirable and inappropriate.
     Affirmed.
     Stroud and Crabtree, JJ., agree.