Ferren v. Director

Annotate this Case
Kenneth FERREN v. DIRECTOR, 
Employment Security Department, and 
J W Bailey Landscaping

E 97-48                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered December 3, 1997


1.   Unemployment compensation -- responsibility of Board of Review to make
     findings of fact -- workers' compensation law treated as analogous. -- In
     both workers' compensation and employment security law, it is
     the responsibility of the respective agencies to make findings
     of fact; the supreme court drew upon workers' compensation law
     to establish the scope of judicial review in employment
     security cases; likewise, the supreme court referred to its
     practice in workers' compensation cases when it determined
     that the Board of Review's failure to make findings of fact
     required remand of the matter at hand; the appellate court has
     followed this practice of supplying rules in employment
     security cases by looking to comparable workers' compensation
     law.

2.   Administrative law & procedure -- sufficient finding of fact -- what
     constitutes -- conclusory statement not sufficient. -- A satisfactory,
     sufficient finding of fact must contain all of the specific
     facts relevant to the contested issue or issues so that the
     reviewing court may determine whether the agency has resolved
     these issues in conformity with the law; the agency must find
     as facts the basic component elements on which its conclusion
     is based; a finding of fact sufficient to permit meaningful
     review is a simple straightforward statement of what happened;
     a conclusory statement that does not detail or analyze the
     facts upon which it is based is not sufficient.

3.   Unemployment compensation -- Board of Review did not set forth sufficient
     findings of fact for review. -- The appellate court held that the
     Board of Review's decision did not set forth sufficient
     findings of fact upon which it relied in reaching its
     conclusion; instead, the Board presented a conclusory
     statement, labeled a "finding," and did not detail or analyze
     the facts upon which the "finding" was based; the Board having
     failed to provide a simple straightforward statement of what
     happened, the appellate court could not determine whether the
     Board applied Ark. Code Ann.  11-10-513(a)(Repl. 1996) in
     conformity with the law.

4.   Unemployment compensation -- Appeal Tribunal did not make sufficient
     findings of fact to permit review. -- Where the Board of Review had
     adopted the Appeal Tribunal's decision as its own, the Board's
     reliance would have been acceptable had the Appeal Tribunal
     made findings of fact and conclusions of law sufficient to
     allow meaningful review; however, the Appeal Tribunal did not
     make sufficient findings of fact to permit review.

5.   Unemployment compensation -- case reversed and remanded for Board to make
     specific findings of fact. -- Because the appellate court was
     unable to determine the facts upon which the Board of Review
     relied in reaching its conclusion, it reversed and remanded
     for the Board to make specific findings of fact.

6.   Unemployment compensation -- standard of review. -- The findings of
     fact of the Board of Review are conclusive if they are
     supported by substantial evidence; the appellate court reviews
     the evidence and all reasonable inferences deducible therefrom
     in the light most favorable to the Board's findings; even when
     there is evidence upon which the Board might have reached a
     different decision, the scope of judicial review is limited to
     a determination of whether the Board could reasonably reach
     its decision upon the evidence before it.  

7.   Evidence -- substantial evidence defined. -- Substantial evidence is
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion.

8.   Workers' compensation -- Board's decision not to reopen hearing supported
     by substantial evidence. -- The appellate court held that the Board
     of Review's decision not to reopen appellant's hearing was
     supported by substantial evidence, and it affirmed the Board's
     decision on this point.  

     Appeal from the Arkansas Board of Review; affirmed in part;
reversed in part.
     No briefs filed.

     D. Franklin Arey, III, Judge.
     The Board of Review affirmed the denial of unemployment
insurance benefits to the appellant, Kenneth Ferren, on the basis
that he left his last work voluntarily and without good cause
connected with the work.  The Board also affirmed a decision not to
reopen the scheduled hearing, upon appellant's failure to show good
cause for not appearing at the hearing.  Appellant brings this
appeal challenging the Board's decisions.  We must reverse and
remand the Board's decision on the merits, because it did not set
forth the findings of fact upon which it relied in reaching its
conclusion.  However, we affirm the Board's determination that the
hearing should not be reopened.
     Appellant's challenge to the Board's denial of benefits
requires a review of the Board's findings.  The Employment Security
Department denied appellant's claim for benefits.  The Arkansas
Appeal Tribunal affirmed the department's decision.  The Appeal
Tribunal's discussion of the merits in its written decision
consists of the following:  
     After a study of the record in this case, the Appeal
     Tribunal finds that all interested parties have been
     afforded a reasonable opportunity for a fair hearing and
     that the determination of the Employment Security
     Department is supported by the record.  Therefore, the
     determination of the Employment Security Department
     denying the claimant benefits is affirmed.

The Appeal Tribunal did not identify any evidence or facts it
relied on in making this decision.
     Appellant then appealed to the Board of Review; the Board
affirmed the Appeal Tribunal.  Its discussion was also limited:
     Also after a consideration of the evidence of record, the
     Board of Review finds that the decision of the Tribunal
     which affirmed the Department determination disqualifying
     the claimant from receiving benefits under Ark. Code Ann.
      11-10-513(a) is supported by the record.  That Tribunal
     decision is hereby adopted as part of the decision of the
     Board of Review.  Therefore, the decision of the Appeal
     Tribunal which left in effect the Department's
     determination is affirmed on the finding that the
     claimant left last work voluntarily and without good
     cause connected with the work.

The Board did not recite the factual basis for its decision; it did
not otherwise discuss the evidence before it.  
     Did the Board make sufficient findings of fact to permit
meaningful appellate review of its decision?  It is instructive to
review comparable workers' compensation law on this question.  In
both areas of the law it is the responsibility of the respective
agencies to make findings of fact.  Compare Lawrence v. Everett, 9
Ark. App. 138, 653 S.W.2d 140 (1983) (matter remanded to Board of
Review in light of its failure to make a finding on an issue), with
Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107
(1986)(case reversed and remanded upon Workers' Compensation
Commission's failure to make findings of fact).  Our supreme court
drew upon workers' compensation law to establish the scope of
judicial review in employment security cases.  Harris v. Daniels,
263 Ark. 897, 567 S.W.2d 954 (1978).  Likewise, our supreme court
referred to its practice in workers' compensation cases when it
determined that the Board's failure to make findings of fact
required remand of the matter at hand.  Reddick v. Scott, 217 Ark.
38, 228 S.W.2d 1008 (1950).  Our court has followed this practice
of supplying rules in employment security cases by looking to
comparable workers' compensation law.  See City of Fayetteville v.
Daniels, 1 Ark. App. 258, 614 S.W.2d 680 (1981).  
     In the workers' compensation law context, we have provided
some guidance as to what constitutes a sufficient finding of fact:
     A satisfactory, sufficient finding of fact must contain
     all of the specific facts relevant to the contested issue
     or issues so that the reviewing court may determine
     whether the Commission has resolved these issues in
     conformity with the law.  The Commission must find as
     facts the basic component elements on which its
     conclusion is based. ...
     
          A finding of fact sufficient to permit meaningful
     review is a "simple straightforward statement of what
     happened."

Lowe v. Car Care Mktg., 53 Ark. App. 100, 102, 919 S.W.2d 520, 521
(1996)(citations omitted).  A conclusory statement that does not
detail or analyze the facts upon which it is based is not
sufficient.  Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark.
365, 369, 830 S.W.2d 857, 859 (1992).  
     Under these standards, it is apparent that the Board of
Review's decision in this case does not set forth sufficient
findings of fact upon which it relied in reaching its conclusion. 
We are presented with a conclusory statement, labeled a "finding,"
that the appellant "left last work voluntarily and without good
cause connected with the work."  The Board did not detail or
analyze the facts upon which this "finding" was based.  See Cagle
Fabricating & Steel, Inc., 309 Ark. App. at 369, 830 S.W.2d  at 859. 
The Board failed to provide a simple straightforward statement of
what happened; in the absence of such a statement, we cannot
determine whether the Board applied Ark. Code Ann.  11-10-
513(a)(Repl. 1996) in conformity with the law.
     We note that the Board adopted the Appeal Tribunal's decision
as its own.  If the Appeal Tribunal had made findings of fact and
conclusions of law sufficient to allow meaningful review, this
would have been acceptable.  See, e.g., Cowan v. Director, 56 Ark.
App. 17, 936 S.W.2d 766 (1997)(where the Board adopted the Appeal
Tribunal's findings of fact and conclusions of law, we reviewed
those findings and conclusions under the applicable standard of
review); cf. Lowe, 53 Ark. App. at 102, 919 S.W.2d  at 521 ("[w]hile
the Commission may specifically adopt the findings of fact made by
the administrative law judge, it is necessary under such
circumstances that the administrative law judge have made
sufficient findings").  As the excerpt quoted above indicates, the
Appeal Tribunal did not make sufficient findings of fact to permit
review.
     Because we are unable to determine the facts upon which the
Board relied in reaching its conclusion, we reverse and remand for
the Board to make specific findings of fact.
     For his second point, appellant challenges the Board's
decision not to reopen his hearing.  Again, the Board adopted the
Appeal Tribunal's decision as its own.  The Appeal Tribunal found
that its file contained two call-in slips for the appellant; both
slips contained a phone number for a church.  The Appeal Tribunal
also called the phone number of appellant's grandmother that was
contained in the file.  Appellant was not at either of these
numbers.  Appellant denied leaving the church's number, and
mentioned at the hearing on the reopening issue that he had heard
that the employer was bragging about having someone else call in
pretending to be appellant.  The Appeal Tribunal noted that the
church's number was the only number called in for the appellant; if
the employer called that number in, then there was no record of the
appellant having called in a correct number at all.  The Appeal
Tribunal thought it was unlikely that the appellant's number was
copied down incorrectly twice.  The Appeal Tribunal concluded that
it was more likely that appellant called in the wrong number by
mistake; it did not believe that this was good cause for failing to
appear.  
     Our standard of review is well settled:
     The findings of fact of the Board of Review are
     conclusive if they are supported by substantial evidence. 
     We review the evidence and all reasonable inferences
     deducible therefrom in the light most favorable to the
     Board's findings.  Even when there is evidence upon which
     the Board might have reached a different decision, the
     scope of judicial review is limited to a determination of
     whether the Board could reasonably reach its decision
     upon the evidence before it.  

Cowan v. Director, 56 Ark. App. 17, 18-19, 936 S.W.2d 766, 767
(1997) (citations omitted).  Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.  Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996).  
     The Board's decision is supported by substantial evidence. 
Therefore, the Board's decision on this point is affirmed.  
     Affirmed in part; reversed and remanded in part.
     Crabtree and Roaf, JJ., agree.

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