George W. Scott, Jr. v. Director, Employment Security Department and Yale Hoist

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION III

E02-173

MARCH 5, 2003

GEORGE W. SCOTT, JR.

AN APPEAL FROM THE ARKANSAS

APPELLANT BOARD OF REVIEW

v. [2002-BR-00422]

DIRECTOR, ARKANSAS

EMPLOYMENT SECURITY DIVISION AFFIRMED

and YALE HOIST

APPELLEES

Appellant George W. Scott, Jr., appeals from a decision of the Board of Review (Board) that deemed his appeal untimely. The Board found that appellant had failed to show that the untimeliness of the appeal was due to circumstances beyond his control. For reversal, appellant contends that the Employment Security Division (ESD) should be estopped from asserting that his appeal was untimely. We disagree and affirm.

From April 8, 2001, to April 21, 2001, appellant was laid off from his position at Yale Hoist. When he did not receive unemployment benefits for the period of April 14 to April 21, appellant sought assistance from his local ESD. An employee corrected the oversight and appellant subsequently received a check that erroneously contained three weeks' pay. Appellant maintains that he thought the check was for the right amount. On July 13, 2001, appellant received a letter from the ESD advising him that he had received an overpayment of unemployment benefits. The letter also notified appellant of his right to file an appeal.

Appellant testified that several days after receiving the letter, he went to his local ESD office to file an appeal. He stated that he showed the receptionist, Ms. Triggs, the letter and informed her he wanted to file an appeal. Appellant testified that the receptionist told him the office had a copy of the letter and that he did not need to worry about filing an appeal. Appellant maintains that based on this discussion he did not file an appeal.

On September 11, 2001, appellant received notification of a fraud overpayment and his right to file an appeal. Appellant again went to his local office. Appellant testified that the receptionist told him it was not necessary to file an appeal. He also testified that he was told that any overpayment would be deducted from future unemployment benefits. Appellant again failed to file an appeal.

Appellant was laid off again in January 2002. When he applied for unemployment benefits, appellant received a notice informing him that he was disqualified from receiving benefits for sixteen weeks because of the fraud overpayment. Appellant was also informed that he had failed to timely appeal the overpayment and the fraud overpayment. Appellant then filed an untimely appeal for the overpayment and fraud overpayment. He testified that at this time he also tried to make arrangements to repay the overpayment.

During his testimony before the Appeal Tribunal, appellant stated "I mean it had meconfused because I myself knew from getting the letter that what it said about appeal." Appellant also stated:

I did what it was telling me to do about appealing it, at the local office, and what she told me. When I went down there in both July and September, I asked her to appeal it and she told me it wasn't no sense in appealing it because it was just something that would eventually be taken care of.

Appellant later testified that he was not told he absolutely could not file an appeal and that the receptionist did not preclude him from filing an appeal. Appellant asserted that he failed to file a written appeal because the receptionist told him everything came through the local office first even if he filed a written appeal directly to the Appeal Tribunal. Appellant subsequently testified that he went to the local office twice in July, and that during his second visit, he filed what he believed was an appeal.

Delois Hare, the local office manager, testified that the receptionist in July was Ester Triggs and that she had since left her employment. She stated that the receptionists were told to inform people that they could fill out an appeal form in the office or write directly to the Appeal Tribunal. However, she stated that the office prefers for people to complete the forms in the office because when they take the forms home they often fail to return the forms within the twenty-day period. Hare explained that the standard procedure in the office was as follows:

The local office interviewer is who's suppose to fill out the appeal form when a person comes to the local office. When someone comes in and says they have a matter, we put them in a box and the local officer interviewer calls them from that particular box. A receptionist cannot refuse to allow somebody to see an interviewer. Even is [sic] an appeal is untimely, a receptionist would not tell someone that they cannot file an appeal. We go ahead and let them file the untimely appeal and let the appeals department decide whether they want to accept it as timely or untimely.

The Appeal Tribunal dismissed appellant's appeal as untimely. The Board affirmed the dismissal. The Board found that due to inconsistencies in appellant's testimony, he was not a credible witness and that appellant had failed to show that the lateness of the appeal was due to circumstances beyond his control. This appeal followed.

On appeal, this court reviews the findings of fact of the Board of Review in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. Niece v. Director, Employment Sec. Dep't., 67 Ark. App. 109, 992 S.W.2d 169 (1999). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997). The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Niece, supra. 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. Id.

Appellant asserts that the Employment Security Division should be estopped from asserting his appeal was untimely. The doctrine of estoppel is applicable when four essential elements are present: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. Wells v. Everett, 5 Ark. App. 303, 635 S.W.2d 294 (1982). At one point during his testimony, appellant stated that he knew he could also file an appeal by filing a written appeal with the Appeal Tribunal. Thus, wecannot say appellant was ignorant of the true facts. Appellant is unable to maintain his estoppel argument; accordingly, the Board's decision is supported by substantial evidence and we affirm.

Affirmed.

Stroud, C.J., and Vaught, J., agree.