Home Care Professionals of Arkansas, Inc. v. Director, Arkansas Employment Security Department

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e04-280

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

HOME CARE PROFESSIONALS OF ARKANSAS INC.

APPELLANT

v.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT

APPELLEE

E04-280

JUNE 1, 2005

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2003-BR-3 EC]

REMANDED

Karen R. Baker, Judge

This case involves the determination of coverage for unemployment insurance contributions to the Home Care Professionals of Arkansas, Inc., appellant. We remand for further findings of fact.

The issue on appeal is whether appellant is exempt from, or liable for, unemployment insurance taxes under the Arkansas Employment Security Law in regard to remuneration received by caregivers. Appellant argues that the Board of Review erred in determining that the remunerated services of the caregivers using appellant as a source of referrals qualify as employment subject to the payment of unemployment insurance taxes.

Our scope of appellate review in cases such as this is well-settled and off-stated:

On appeal, the findings 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. 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.

E.g., Fleming v. Director, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001).

The first sentence of Ark. Code. Ann. § 11-10-210(e) (Repl. 2002) defines employment for purposes of coverage regarding unemployment-insurance taxes. It provides in part that "[s]ervice performed by an individual for wages shall be deemed to be employment subject to this chapter...." Id. "Wages" is defined to mean "all remuneration paid for personal services, including, but not limited to, commissions, bonuses, cash value of all remuneration paid in any medium other than cash, the value of which shall be estimated and determined in accordance with regulations prescribed by the Director of the Arkansas Employment Security Department, and tips received while performing services which constitute employment...." Ark. Code Ann. § 11-10- 215(a) (Repl. 2002). The remainder of section 11-10-210(e) sets out the three requirements that must be satisfied in order to qualify for an exemption from unemployment-insurance taxes.

While the Board of Review's opinion provides a summary of evidence, it does not make sufficient specific findings. For instance, the first of appellant's two-part argument maintains that the remuneration received by the caregivers does not constitute wages for the purposes of establishing unemployment insurance liability; however, the opinion fails to make a finding that the remuneration qualified as wages as defined by the statute.

When an administrative agency fails to make findings 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. 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); Lawrence v. Everett, Dir., 9 Ark. App. 138, 653 S.W.2d 140 (1983).

Accordingly, we remand the matter to the Board.

Pittman, C.J., and Crabtree, J., agree.