Danny Wall v. Director, Employment Security Department and SNC Lavalin Constructors

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DANNY WALL

APPELLANT

V.

DIRECTOR, EMPLOYMENT

SECURITY DEPARTMENT and SNC

LAVALIN CONSTRUCTORS

APPELLEES

E 04-2

MAY 5, 2004

APPEAL FROM THE BOARD OF

REVIEW, [NO. 2003-BR-01343]

REVERSED AND REMANDED

John B. Robbins, Judge

Appellant Danny Wall appeals the decision of the Board of Review that affirmed the Appeal Tribunal's dismissal of his appeal from the Employment Security Department. The Appeal Tribunal had concluded that appellant failed to show that the late filing of his appeal was due to circumstances beyond his control. We reverse and remand.

This appeal involved a fraud disqualification due to an alleged false statement or misrepresentation in appellant's original claim filed April 8, 2003. From the record before us it appears that the alleged fraudulent representation was appellant's assertion that his last employment had been terminated by his employer. Apparently, the department believed the employer's representation that appellant had voluntarily left his employment without good cause connected with the work.

Although appellant appealed the employment separation determination, the Appeal Tribunal and Board of Review found that he did not timely appeal the fraud disqualification. These two determinations were apparently placed on separate tracks. The separation determination was ultimately resolved in appellant's favor by a decision of the Board of Review on August 14, 2003, in Appeal No. 2003-BR-01343.

The Appeal Tribunal found that a Notice of Agency Determination regarding his fraud disqualification was mailed to appellant on May 19, 2003. After appellant was awarded benefits by the Board of Review in No. 2003-BR-01343, yet did not actually receive these benefits, he inquired and learned of the fraud disqualification. He then filed an appeal to the Appeal Tribunal on September 20, 2003. A hearing was conducted and the Appeal Tribunal concluded that appellant failed to show that his late filing was due to circumstances beyond his control. Upon appeal to the Board of Review in 2003-BR-02351, the Board made similar findings and affirmed the Appeal Tribunal. The Board's decision, as did the Appeal Tribunal's, disqualified appellant until "he has ten (10) weeks of employment in each of which he...has earned wages equal to at least his...weekly benefits amount."1

We agree with appellant that the successful appeal of the separation determination should have resolved the fraud disqualification issue. Appellant's representation that he was discharged from his last employment for reasons other than misconduct connected to the work, which representation constituted the basis of his alleged fraudulent claim, was ultimately found to be factual upon his successful appeal in No. 2003-BR-01343. It appears that one hand of the department was not aware of what the other hand was doing. Consequently, we reverse and remand this matter to the Board of Review for further proceedings consistent with this opinion. If additional evidence is deemed necessary by the Board of Review to correct this breakdown in communication within the department, the Board is directed to conduct an evidentiary hearing pursuant to Ark. Code Ann. § 11-10-529(c)(2)(A) (Supp. 2003).

Reversed and remanded.

Neal and Crabtree, JJ., agree.

1 The department's earlier notice of fraud disqualification stated that appellant would be disqualified for 13 weeks beginning with the date of the filing of the claim. The discrepancy between this disqualification period and that indicated in the decisions of the Appeal Tribunal and Board of Review results from passage of Act 1367 of 2003, which amended the employment security laws and became effective on April 10, 2003, two days after appellant's claim was filed. Due to our disposition of this appeal we do not address the matter of which disqualification period should have been applicable to appellant.