Andrew Bushnell v. Director, Arkansas Department of Commerce, Division of Workforce Services

2022 Ark. App. 194, 645 S.W.3d 24

• Court: Court of Appeals of Arkansas
• Decided: May 4, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 194 ARKANSAS COURT OF APPEALS DIVISION I No. E-21-387

ANDREW BUSHNELL Opinion Delivered May 4, 2022 APPELLANT APPEAL FROM THE ARKANSAS V. BOARD OF REVIEW [2021-BR-01339]

DIRECTOR, ARKANSAS DEPARTMENT OF COMMERCE, DIVISION OF WORKFORCE SERVICES REVERSED AND REMANDED APPELLEE

N. MARK KLAPPENBACH, Judge

Appellant Andrew Bushnell appeals the Board’s denial of his request for

unemployment benefits for the weeks of April 4 through June 6, 2020. His claims for those

weeks were rejected as untimely. We reverse and remand.

Bushnell filed a claim for unemployment insurance benefits on March 30, 2020. He

filed his claim in Arkansas although he also earned wages in Texas. The agency requested

proof of Bushnell’s out-of-state wages to determine Bushnell’s eligibility for benefits.

Bushnell promptly provided his Texas wage information. Bushnell attempted to file claims

online every week but was met with a message that he was not eligible. He called the

unemployment phone line almost daily, and he went to the local office three times while the

decision was pending. The Division of Workforce Services had misplaced the Texas wage

records and did not find them until June 2020. Bushnell was then permitted to file written claims for the weeks of April 4 through June 20, 2020, to ask that those claims be considered

timely.

The Department of Workforce Services issued an agency decision finding that

Bushnell’s claims were untimely and that he had failed to show good cause to permit

backdating of the weekly claims. Bushnell appealed to the Appeal Tribunal, which

conducted a hearing and found that Bushnell was entitled to two weeks (the weeks ending

June 13 and June 20) of backdated claims because the delay in filing was due to good cause.

The Appeal Tribunal recognized that Bushnell provided the Texas wage information the day

after it was requested, recognized all the efforts Bushnell made to keep his weekly filing in

compliance with the law, and agreed that Bushnell was not successful in getting his claims

processed “due to circumstances beyond his control.” The Appeal Tribunal recited that the

applicable law limited backdating to fourteen days in this circumstance. Bushnell appealed

again to the Board of Review, which acknowledged that the delay in processing was due to

the claimant’s earning wages in two states but stated that this was not an extraordinary

circumstance. The Board found that the Appeal Tribunal’s decision was correct in its

findings of fact and conclusions of law, so the Board affirmed and adopted the decision of

the Appeal Tribunal. This appeal followed.

Bushnell argues that he did everything he could to properly file his claim on a weekly

basis. Bushnell contends that it is undisputed that it was the agency’s fault that his Texas

wage information was misplaced and the agency’s fault for the delay in his claims being

processed properly. He argues that, in that circumstance, he should have been permitted to

2 backdate his claim for more than two weeks, which is specifically permitted by law. We agree

with Bushnell.

Bushnell was required to comply with Arkansas Code Annotated section 11-10-507

by making a claim for benefits for each week in accordance with the Workforce Services’

regulations. As relevant here, Bushnell was required to comply with Regulation 14(b):

(G) An initial, additional, reopened or continued claim, if filed either by telephone, electronically via the Internet or, in person, shall be considered to have been filed on the date it is received by the Agency. If mailed, such claim shall be considered to have been filed on the date of its postmark. Except that, if it is determined by the Agency that a delay in the filing or any claim was due to good cause, it may be considered to have been filed on a date no earlier than fourteen (14) days prior to the date the claim, if filed in person, by telephone, or electronically via the Internet was received by the Agency or, if filed by mail, was postmarked. Provided however, the Director at his discretion may waive the restrictions in this Paragraph (G) if he finds that extraordinary circumstances exist and equity and justice require such waiver. All such waivers shall be reported to the Employment Security Department Advisory Council.

Code Ark. R. 003.20.2-14(b) (emphasis added). In short, the Appeal Tribunal and the Board

found that Bushnell established “good cause” for the late filings but not “extraordinary

circumstances” in which “equity and justice” would require a waiver of the tardiness of his

filings.

We affirm Board of Review decisions when they are supported by substantial

evidence. Robinson v. Dir., 2021 Ark. App. 485, 638 S.W.3d 29. Substantial evidence is that

which reasonable minds might accept as being adequate to support a conclusion. Garrett v.

Dir., 2014 Ark. 50, 2014 WL 495124. We view the evidence and all reasonable inferences

deducible therefrom in the light most favorable to the Board’s findings. Id. Even if the

evidence could support a different decision, we limit our review to whether the Board could

3 have reasonably reached its decision on the evidence presented. Id. However, our function

on appeal is not merely to rubber-stamp decisions arising from the Board. Robinson, supra.

We hold that the Board’s decision is not supported by substantial evidence.

Regulation 14 permits backdating for two weeks for “good cause,” but it further permits

waiver of the limits of backdating if “extraordinary circumstances exist and equity and justice

require such waiver.” It is undisputed that Bushnell was requested to, and did promptly,

provide proof of his Texas wages. The Appeal Tribunal recited that Bushnell provided those

records in April 2020 within a day of being asked. It is also undisputed that it was the fault

of the Division of Workforce Services that those records were misplaced and not found until

June 20, 2020. Bushnell did everything he could to file claims on a weekly basis and kept in

contact with the agency by phone, in person, by mail, and online. With the fault resting

solely on the Division of Workforce Services in the delay, we hold that this situation is an

“extraordinary circumstance” such that “equity and justice require such waiver” of the two-

week limitation on backdating Bushnell’s claims.

Reversed and remanded.

GLADWIN and HIXSON, JJ., agree.

Andrew Bushnell, pro se appellant.

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