Moore v. Price

914 S.W.2d 318, 52 Ark. App. 10, 1996 Ark. App. LEXIS 27

• Court: Court of Appeals of Arkansas
• Decided: January 31, 1996
• Docket: E 94-231
• Status: Published

Opinions

Judith Rogers, Judge.

This is an appeal from a decision of the Board of Review disqualifying appellant from receiving unemployment compensation benefits. The Board held that appellant was discharged for misconduct connected with the work. This appeal comes to us without benefit of briefs being filed by either party. We affirm.

Both the Agency and Appeal Tribunal in this case denied benefits based on a finding that appellant had voluntarily quit his job without good cause connected with the work pursuant to Ark. Code Ann. § ll-10-513(a)(l) (1987). The Board also denied benefits, but modified the appeals referee’s decision by finding that the appellant had been discharged for misconduct pursuant to Ark. Code Ann. § ll-10-514(a)(l) (1987). In Linscott v. Director, 9 Ark. App. 103, 653 S.W.2d 150 (1983), the Agency and Appeal Tribunal determined that the appellant was disqualified for the receipt of benefits for misconduct connected with the work. The Board of Review, however, denied benefits on the ground that appellant had voluntarily quit his job without good cause connected with the work. We agreed with the argument presented in the appeal and held that it was a denial of due process for the Board to disqualify a claimant on a different ground than that contained in the hearing notice. Consequently, we reversed and remanded for further proceedings.

Here, as in Linscott, the Board denied benefits on a ground different from that of the Agency and Appeal Tribunal. However, the decision in Linscott does not compel reversal of this case. Fundamental to the decision in Linscott was the appellant’s claim that the issue to be litigated was confined to the charge of misconduct, and his assertion that he and his legal representative had only prepared and presented evidence pertinent to that one issue. Under those circumstances, we determined that the injection of the voluntary quit issue for the first time in the Board’s decision effectively deprived the appellant of notice and the opportunity to defend and be heard on the alternative ground raised by the Board. By contrast, the record in this case demonstrates that the Board’s finding that appellant was discharged for misconduct was within the framework of contested issues. The hearing notice plainly states that the “primary issue(s) involved are: Whether the claimant voluntarily left, was discharged or suspended from last work and whether the circumstances of the separation entitle the claimant to unemployment benefits within the meaning of Ark. Code Ann. 11-10-513 and/or 514.” Indeed, the appeals referee framed the issues as such in her opening remarks. Furthermore, it was the appellant’s position that he had been discharged as reflected by his testimony: “I was laid off. I did not quit.” In sum, the record, without any doubt, reflects that the issues before the Board were whether appellant was entitled to benefits, or whether he was disqualified for either voluntarily quitting without good cause or for being discharged for misconduct. On this record, it cannot plausibly be argued that the Board exceeded the parameters of the defined issues. This case simply does not present a situation where the Board disqualified a claim for benefits on a ground unanticipated by the claimant. Therefore, we hold that appellant was not denied due process.

After a careful and thorough review of the record, we find no error in the Board’s decision and further conclude that it is supported by substantial evidence.

Affirmed.

Mayfield and Robbins, JJ., and Bullion, S.J., dissent.