Alicia Erives v. Director, Division of Workforce Services

2022 Ark. App. 227

• Court: Court of Appeals of Arkansas
• Decided: May 11, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 227 ARKANSAS COURT OF APPEALS DIVISION III No. E-21-226

ALICIA ERIVES Opinion Delivered May 11, 2022 APPELLANT APPEAL FROM THE ARKANSAS V. BOARD OF REVIEW [NO. 2020-BR-00081]

DIRECTOR, DIVISION OF WORKFORCE SERVICES APPELLEE AFFRIMED

MIKE MURPHY, Judge This is a companion case to Alicia Erives v. Director, 2022 Ark. App. 226, also handed

down today. The cases concern the same appellant but different unemployment claims.

Here, Erives again appeals the decision of the Board of Review (Board) affirming the Appeal

Tribunal’s (Tribunal’s) finding that she filed an untimely appeal due to circumstances that

were not beyond her control. We affirm.

As the Board’s decision states, the procedural history of this case is “initially

confusing,” and “it is highly likely that this decision is not what she intended to appeal.” For

the purpose of background information, Erives worked for Hello Wellness from October 14

to December 6, 2019. She filed for unemployment benefits on January 17, 2020, and was

initially approved for benefits. On March 16, 2020, Hello Wellness appealed to the Tribunal (case No. 2020-AT-01649), and a hearing was conducted on March 31. Finding in favor of

Hello Wellness, the Tribunal mailed its decision letter to reverse and deny Erives’s award of

benefits on April 1. Thereafter, Erives filed an untimely appeal to the Board (case No. 2020-

BR-01289) on September 10—the same day she appealed to the Tribunal in the overpayment

companion case. According to the Board’s decision in this record, Erives was afforded a

telephone hearing on October 5 to establish whether the late filing of the appeal was the

result of circumstances beyond her control. The decision notes that Erives testified that she

was unaware of the Tribunal’s hearing until she received the notice of overpayment in court

of appeals case No. E-21-222, the companion case. On October 9, the Board mailed its

decision dismissing the appeal as untimely. Erives never appealed to our court, so this denial

of benefits stands.1

The confusion stems from Erives’s filing an appeal to the Board on December 30,

2020 (case No. 2021-BR-00081), the same day she appealed to the Board in the companion

case (case No. 2021-BR-00071). Using the Tribunal petition form rather than a Board form,

Erives submitted the same petition form to appeal to the Board in the overpayment

companion case. The petition stated she was appealing “non-fraud overpayment and late

appeal.” The Board conducted a hearing for case No. 2021-BR-00081 on March 3, 2021,

pursuant to Paulino v. Daniels, 269 Ark. 676, 559 S.W.2d 760 (Ark. Ct. App. 1980), to afford

1 Arkansas Code Annotated § 11-10-529(a)(I)(A) (Supp. 2021) requires that a petition for review of a decision of the Board must be filed with the Arkansas Court of Appeals within thirty calendar days from the date the decision is mailed to the claimant.

2 her the opportunity to show why her untimely appeal was due to circumstances beyond her

control.

With no explanation provided in the record, the case was docketed as an appeal from

an unemployment case Erives had in 2013. According to this record, Erives worked for

Collins Chiropractic from July 19 to July 24, 2013. She claimed she was laid off and filed

for unemployment. The notice of appeal determination was mailed in August 2013

disqualifying her from benefits. She appealed to the Tribunal on September 6, 2013 (case

No. 2013-AT-12229). The Tribunal found that she was denied unemployment because she

quit and made willful false statements. This decision was mailed to her on September 30,

2013, and nothing further happened until this present case. According to the transcript, the

docketing of the appeal as the 2013 case created confusion for both Erives and the Board’s

attorney at the hearing. Erives’s testimony mirrored her testimony in the companion case.

The Board scheduled a second hearing for March 24, 2021, to obtain additional

information, but Erives did not answer the phone to appear at the hearing. Thereafter, the

Board mailed its decision on March 31, 2021, to dismiss the appeal finding it untimely. The

decision references the 2020-BR-01289 unemployment claim that likely resulted in the

overpayment companion case. As the decision explains, Erives already appealed to the

Tribunal and the Board in that case, so if she was trying to pursue that issue, she should have

appealed it to the court of appeals because the Board cannot hear the same case again.

On appeal, Erives argues there is not substantial evidence in the record to support

the Board’s findings. Erives concedes that she did not intend to appeal and litigate the

3 unemployment case from 2013. However, her petition for review before this court in this

docket asks for review of the Board’s order in case No. 2021-BR-00081—which dealt with the

2013 matter—not case No. 2020-BR-01289. Erives had the opportunity on March 24 for a

second hearing with the Board to potentially set the record straight, but she did not appear.

In light of the record presented to us, Erives was afforded due process, and we must

affirm the dismissal for lack of jurisdiction.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, by: George M. Rozzell IV, for appellant.

Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.