Delores Y. Gross v. Director, Employment Security Department

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e04-178

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

E04-178

DECEMBER 8, 2004

DELORES Y. GROSS

AN APPEAL FROM THE ARKANSAS BOARD OF REVIEW [2004-BR 00655]

v. APPELLANT

ARTEE WILLIAMS, DIRECTOR

EMPLOYMENT SECURITY

DEPARTMENT

APPELLEE REMANDED

Olly Neal, Judge

Appellant Delores Y. Gross appeals the decision of the Board of Review that found that, pursuant to Ark. Code Ann. §11-10-532(b), she was liable for the repayment of $5,702 to the unemployment insurance fund. The Board of Review made this determination based upon a finding that appellant received benefits to which she was not entitled, that it was received without fault of the appellant, but that equity and good conscience would not be violated by requiring repayment of the overpaid amount. We remand for further findings.

The relevant facts are as follows. The appellant received $5,702 in unemployment insurance benefits for the period September 22, 2001, through January 19, 2002. The appellant testified that she received unemployment insurance benefits during the period at issue, and in some weeks received partial benefits due to earnings from a part-time job. She stated that she had worked as a paralegal for the past one and one-half years. She testified that she worked forty hours per week, at $13 per hour, with deductions of $39.78 for Social Security, $36.00 for federal taxes, and $19.95 for state taxes per week. She said her sixteen-year-old son resides with her and that she receives child support of $40 per week "most of the time." The appellant indicated that she "rolled over" retirement monies from "the gas company" to an "IRA." She stated that the balance was approximately $30,000 but that, if she withdrew from it early, there would be a "10% penalty for taxes" and "10% or more" for the early withdrawal.

The appellant testified that she paid $550 per month in rent and that her utility bills averaged $30 for water, $25 for gas, and $85 for electric per month. She indicated she paid $80 per month for a telephone bill, including internet access, and $52 per month for cable television. She estimated her monthly dry cleaning costs as $20 and food as $400. She testified that she owns a 1993 Toyota pickup, for which the insurance was $65 per month and gasoline and upkeep were approximately $20 per week. She said she recently applied for $150,000 in life insurance, which will cost $85 per month. The appellant testified that she had no health insurance, but expected to have to pay $150 per month to obtain it. She pays approximately $20 per month for regular prescription medication for her teenage son. She indicated she also pays $14 per month in renter's insurance and $150 per month for clothing. She said she had outstanding balances on three credit cards, totaling approximately $2,250 on which she pays $90 per month.

On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Hunt v. Director, 57 Ark. App. 152, 942 S.W.2d 873 (1997). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. See Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). 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. See Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).

The relevant code section, Ark. Code Ann. §11-10-532 (b)(1) (1997), provides in pertinent part that:

(A) If the director finds that any person has received any amount as benefits

under this chapter to which he was not entitled by reasons other than fraud,

willful misrepresentation, or willful nondisclosure of facts, the person shall be

liable to repay the amount to the fund.

(B) In lieu of requiring the repayment, the director may recover the amount

by deduction from fifty percent (50%) of any future benefits payable to the

person under this chapter unless the director finds that the overpayment was received

without fault on the part of the recipient and that its recovery would be against equity

and good conscience (emphasis added.)

In Pritchett v. Director of Labor, 5 Ark. App. 194, 634 S.W.2d 397 (1982), we said:

If appellant has been paid benefits to which she was not entitled, due

process requires that her liability to repay the amount so received must

be determined after she has been afforded the opportunity of a hearing

after proper notice, upon issues set out in [applicable Arkansas Code

Section]. (citations omitted).

Here, appellant does not claim that she has not been afforded a hearing on the issues set out in Ark. Code Ann. §11-10-532 (b)(1), she simply disagrees with the findings that resulted from that hearing.

We have said that evidence of appellant's economic position is pertinent to a finding of whether the principles of equity and good conscience would be violated. See Lawence v. Everett, 9 Ark. App. 138, 653 S.W.2d 140 (1983). In the case at bar the Board of Review does not announce in its opinion the resources available to appellant versus the reasonable obligations of appellant, and includes only a partial or incomplete listing of appellant's monthly obligations. From the numbers presented, we are unable to determine if appellant's available resources exceed her reasonable obligations. Without a finding on this issue, we cannot properly review the decision of the Board. When an administrative agency fails to make a finding upon a pertinent issue of fact, the courts do not decide the question in the first instance; the cause is remanded to the agency so a finding can be made on that issue. See Hays v. Batesville Mfg. Co., 251 Ark. 659, 473 S.W.2d 926 (1971); Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950).

Remanded.

Griffen and Roaf, JJ., agree.