Phillip Harrison v. Director, Division of Workforce Services; And Creative Co-Op, Inc.

2021 Ark. App. 432

• Court: Court of Appeals of Arkansas
• Decided: November 10, 2021
• Status: Published

Opinion

Elizabeth Perry Cite as 2021 Ark. App. 432 I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION I 2023.07.14 11:18:22 -05'00' No. E-20-289 2023.003.20244

PHILLIP HARRISON Opinion Delivered November 10, 2021 APPELLANT

V. APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 20-BR-01162] DIRECTOR, DIVISION OF WORKFORCE SERVICES; AND CREATIVE CO-OP, INC. APPELLEES AFFIRMED

RAYMOND R. ABRAMSON, Judge

Appellant Phillip R. Harrison appeals an adverse ruling of the Arkansas Board of

Review (the “Board”) affirming the Appeal Tribunal’s dismissal of his unemployment claim

as untimely. Harrison appeals to us contending that although his appeal was late, the tardiness

was due to circumstances beyond his control. We affirm the Board’s decision.

In order to appeal a Division of Workforce Services determination, a claimant must

file a written notice of appeal with the Appeal Tribunal or any office of the Division of

Workforce Services within twenty calendar days of the mailing date of the determination.

Ark. Code Ann. § 11-10-524(a)(1) (Supp. 2021). If the appeal is not filed within the

statutory time period, the appeal may still be considered timely if the late filing was the result

of circumstances beyond appellant’s control. Ark. Code Ann. § 11-10-524(a)(2). Harrison was initially denied benefits when the Arkansas Division of Workforce

Services issued a determination finding that he was disqualified from receiving benefits for

a certain period due to the amount of severance pay that he received upon termination from

his employment at Creative Co-Op, Inc. The determination clearly stated that an appeal

must be filed within twenty days of May 22, 2020––the day the determination was mailed.

The last date to file an appeal to the Appeal Tribunal, pursuant to Arkansas Code Annotated

section 11-10-524(a)(1), was therefore June 11, 2020. Harrison’s appeal was not postmarked

until June 17 and was received by the Appeal Tribunal on June 19.

Pursuant to Arkansas Code Annotated section 11-10-524(a)(2) and Paulino v. Daniels,

269 Ark. 676, 679, 599 S.W.2d 760, 762 (Ark. App. 1980), the Appeal Tribunal conducted

a hearing to determine whether the untimeliness was due to circumstances out of Harrison’s

control. At the hearing, Harrison explained that he had received the determination that was

mailed on May 22, but he gave no reason for the delay. His counsel attempted to argue that

the website was down, but he did not substantiate his argument. The record does not

contain any notation or documentation that Harrison or his counsel had contacted the

Division of Workforce Services at any time to note the difficulty with the website.

The Appeal Tribunal concluded that Harrison did not establish that the untimeliness

was due to circumstances beyond his control and dismissed the appeal. The Board affirmed.

The Board found that “it is unfortunate that the website is down, but there is more than

one way to file an appeal.” Harrison’s attorney ultimately filed by letter, and that letter was

not postmarked within the requisite twenty-day time frame; thus, there was sufficient

evidence to show that the appeal was untimely.

2 In appeals of unemployment-compensation cases, we review the evidence and all

reasonable inferences deducible therefrom in the light most favorable to the Board’s findings.

Coker v. Dir., 99 Ark. App. 455, 262 S.W.3d 175 (2007). The findings of fact made by the

Board are conclusive if supported by substantial evidence. Id. Substantial evidence is such

evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 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 have

reasonably reached its decision on the basis of the evidence before it. Id. Issues of credibility

of witnesses and the weight to be afforded their testimony are matters for the Board to

determine. Bradford v. Dir., 83 Ark. App. 332, 338, 128 S.W.3d 20, 23 (2003). Reasons for

late filing involve factual issues to be determined by the Board and not this court on appeal.

Johnsen v. Dir., 2012 Ark. App. 634, at 1–2.

Having considered our standard of review and the record before us, we hold that

substantial evidence supports the Board’s conclusion that Harrison’s untimely appeal to the

Appeal Tribunal was not the result of circumstances beyond his control. It is clear that the

appeal was filed outside the required time limit, and neither Harrison nor his attorney

provided sufficient evidence to explain how the delay was due to reasons beyond their

control. We cannot say that the Board erred in its finding. Accordingly, we affirm.

Affirmed.

GLADWIN and KLAPPENBACH, JJ., agree.

WH Law, by: Chris W. Burks, for appellant.

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