Missouri Court of Appeals Western District
VAUGHN WATTREE, ) ) WD86847 Appellant, ) v. ) OPINION FILED: ) DIVISION OF EMPLOYMENT ) September 17, 2024 SECURITY, ) ) Respondent. ) )
Appeal from the Labor and Industrial Relations Commission
Before Division Three: Thomas N. Chapman, Presiding Judge, Lisa White Hardwick, Judge, and Alok Ahuja, Judge
Vaughn Wattree (“Wattree”) appeals pro se from a decision of the Labor and
Industrial Relations Commission (the “Commission”) which affirmed and adopted a
decision of the Appeals Tribunal of the Division of Employment Security. The Appeals
Tribunal found that Wattree had failed to timely appeal a notice that he had never
received regarding a determination by a deputy of the Division of Employment Security
(the “Division”) that he had been overpaid benefits due to fraud on his part. The
Commission’s decision is reversed, and the cause remanded for further proceedings. Background
Wattree applied for unemployment benefits for numerous weeks in 2020 and 2021.
The Division of Employment Security (the “Division”) determined that Wattree was
eligible for unemployment benefits for numerous weeks in 2020 and 2021. Wattree was
paid benefits for numerous weeks in 2020 and 2021.
On December 20, 2022, the Division conducted an audit. A deputy of the Division
determined that Wattree had been overpaid benefits in the total amount of $1,280.00. The
deputy determined that Wattree had been overpaid $320.00 for four separate weeks and
listed as the “claim week dates” October 24, 2020, February 20, 2021, April 10, 2021,
and June 12, 2021. The Division determined that the cause of the overpayment was
Wattree’s fraud in failing to report wages he earned during those four claim weeks. In
other words, the Division determined that he had been paid $320.00 in benefits for each
of those four weeks which he would not have been paid if he had accurately reported his
earnings for those four weeks.
The record on appeal contains a copy of a notice of an Overpayment and Penalty
Determination that lists a mailing date of “12-21-22.”
A Division exhibit following the transcript on appeal contains a document labeled
“Overpayment Details.” This document lists the four “claim week dates” for which the
Division determined that Wattree was overpaid $320.00 in benefits. For the claim week
running from October 18 through October 24 of 2020, the document indicated that
Wattree reported $0.00 in earnings, and that his “Earnings Per Audit” were $0.00 and that
2 he was therefore overpaid in the amount of $320.00. 1 For the claim week running from
February 14 through February 20 of 2021, the document indicated that Wattree had
reported $0.00 in earnings and that his “Earnings Per Audit” were $963.00, such that he
was overpaid in the amount of $320.00. For the claim week running from April 4
through April 10 of 2021, the document indicated that Wattree had reported $0.00 in
earnings and that his “Earnings Per Audit” were $788.50, such that Wattree was overpaid
his benefit amount of $320.00 for that week. For the week of June 6 through June 12 of
2021, the document indicated that Wattree reported $0.00 in earnings, and that his
“Earnings Per Audit” were $802.75, such that Wattree was overpaid his benefit amount of
$320.00 for that week.
Division exhibits following the transcript on appeal indicate that the deputy’s
determination was based on information provided by Wattree’s employer, Centerline
Drivers, LLC (“Centerline”), in response to a questionnaire directed to Centerline. The
questionnaire in the exhibits lists responses to questions that took the following general
form: “Please provide the hours and gross wages for the week ending XX/XX/XXXX?”
The questionnaire did not specify whether the information sought related to earnings or
payment for prior earnings. The questionnaire requested responses for the weeks ending
10/17/2020, 10/24/2020, 01/02/2021, 01/09/2021, 02/20/2021, 04/10/2021, 04/24/2021,
1 The Division apparently determined that Wattree had failed to report earnings during a week in which the audit conducted by the Division revealed that he had no earnings. Although this opinion reaches only the timeliness determination, it is impossible not to recognize this obvious error on the face of this document.
3 05/01/2021, 05/08/2021, 05/15/2021, 05/22/2021, 05/29/2021; 06/05/2021, and
06/12/2021. The employer responded “n/a” to each of the questions, except for the
weeks ending 10/17/2020, 02/20/2021, 04/10/2021, and 06/12/2021. For those four
weeks, Centerline reported that Wattree had worked and earned wages.
At some point, the Division apparently mailed to Wattree two assessments by
certified mail. 2
On April 11, 2023, Wattree sent a letter to the Division indicating that he had
received an assessment notice on March 30, 2023 by certified mail regarding
overpayment benefits. The letter indicated that Wattree wished to appeal because he
would never intentionally do anything to hinder his receipt of benefits.
Wattree sent further correspondence to the Division in June of 2023, indicating
that he had been in correspondence with Division staff. The letter indicated that Wattree
first learned of the issue via the certified assessment letter that had been retrieved from
the post office. Wattree indicated that he filed his appeal promptly, as soon as learning of
the issue.
In the letter, Wattree indicated that the fraud accusations had caught him by
surprise and that he was doing his best to gather the evidence necessary to clear his name
by any reliable source he could gather, but that this task was made difficult as the
exonerating evidence was from years prior. Wattree included in the letter over 40 pages
2 These assessments are not contained in the record on appeal.
4 of his bank records that showed his deposits for certain dates. He also included a brief
letter describing why he thought the records would clear him from any wrongdoing.
The Division sent to Wattree a “Notice of Telephone Hearing” before the Appeals
Tribunal. The notice listed the issues that would be addressed at the hearing:
ISSUE(S) FOR THIS HEARING: 288.380, RSMo: Is the claimant overpaid benefits because of a willful failure to report all earnings or facts? Should the claimant be assessed a penalty in this matter?
288.070.6, 288.070.10, RSMo: Timeliness of the appeal. 3
The telephone hearing before the Appeals Tribunal referee took place on
September 19, 2023. Four different cases were the subject of the appeal, including
overpayment determinations and assessments. 4 Wattree provided testimony under oath.
Aside from the Division referee, no one from the Division participated at the hearing.
The Division referee introduced the Division’s evidence into the record. During the
hearing, the referee indicated to Wattree that it appeared that two overpayment
determinations had been mailed to him on December 21, 2022, and asked if Wattree had
any evidence to show that those mailing dates were incorrect. Wattree disagreed that the
mailing dates were correct and testified that he never received those determinations. He
3 Despite listing two statutory provisions as the applicable statutes governing timeliness in the Notice of Telephone Hearing, the Appeals Tribunal Decision ultimately concluded that these listed provisions did not govern the timeliness of Wattree’s appeal from the overpayment by fraud determination. 4 The other determination and the assessments are not contained in our record on appeal. From the transcripts of the hearing, it appears that the second determination as well as the assessments were consequences of the determination that Wattree had been overpaid by fraud.
5 then pondered how he could have evidence that the mailing dates were incorrect when he
did not receive that correspondence. Wattree testified that he received a certified letter
that his wife had to pick up for him at the post office (in apparent reference to the
assessment notice that he stated he received on March 30, 2023 by certified mail at the
post office in his first letter of appeal). Wattree testified that he would often be working
away from home in his job as a truck driver, and that his wife always checked his mail
and notified him. He did not know why he was not receiving his mail and wondered if
mail previously sent to Wattree by the Division had been returned to the Division such
that the Division felt it was necessary to send him a certified letter. Wattree testified that
the only way he became aware of the accusations against him was through the certified
letter that his wife had to retrieve from the post office, and that he met the deadline to
appeal that was listed on the certified letter.
On the subject of the overpayment determinations, the referee indicated to Wattree
that the overpayment determinations were the result of discrepancies between Wattree’s
reports of his earnings and Centerline’s reports of his earnings. Wattree and the referee
discussed possible sources of the discrepancies while looking at calendars. Wattree
suggested that the referee look at the evidence that he submitted to the Division prior to
the hearing. Wattree indicated that he had been instructed by Division staff that payroll
records from his employer would be better evidence than the bank records that he had
previously submitted. Wattree testified that he had contacted his employer and sent to the
Division “a certified documentation of a payroll registry.” Wattree testified that he had
6 called both of the two days prior to the hearing to make sure that the documents were
uploaded to the meeting, and that he had been informed that the documents would be
uploaded for the hearing. The referee acknowledged that two documents had been
uploaded the day prior to the hearing, with one document being eight pages long and one
document seven pages long, and that the documents were a payroll register. The referee
took administrative notice of all of the documents. 5
Wattree then explained that the payroll registry showed that he was paid on
10/09/2020 for the claim week ending 10/3/2020, and that he was paid on 10/16/2020 for
the claim week ending 10/10/2020. Wattree then pointed out that the pay registry did not
show him working again until the week ending 10/31/2020, such that the payroll registry
indicated that Wattree had no earnings for the claim weeks ending 10/17/2020 or
10/24/20, and that the Division’s accusation that he failed to report income from the week
ending 10/24/2020 was false. Wattree similarly walked the Appeals Tribunal referee
through the remaining claim week dates on which Wattree was accused of fraudulently
failing to report income. With each claim week ending date, Wattree explained how the
pay ending dates on the registry established that he had not earned income from his
employer on the weeks he was accused of failing to report his earnings.
5 These documents are not contained in the record following the transcript on appeal where these documents should appear along with the other evidence in the case. However, excerpts matching the description of these documents were attached to Wattree’s letter of appeal to the Commission.
7 The payroll registry documents that were actually submitted to the Division,
uploaded for the hearing, noticed by the Appeals Tribunal referee, and discussed at length
in the transcripts are not contained in our record on appeal following the transcript on
appeal where the evidence submitted at the hearing is located. However, four pages from
the payroll registry that were before the referee and which match the description of the
payroll registry as discussed in the transcripts were attached by Wattree to his subsequent
appeal to the Commission. 6 Based on the information discussed at the hearing, these four
pages appear to be the pages from the documents submitted to the Division prior to the
hearing that contain information relevant to the four claim week dates in dispute.
These documents, if they accurately depict Centerline’s payroll registry, indicate
that Wattree did not earn wages during the claim weeks ending 10/24/2020, 2/20/21,
4/10/21, or 6/12/2021. These documents, if they accurately depict Centerline’s payroll
registry, also suggest that Centerline’s prior responses to the questionnaire regarding
Wattree’s wages were incorrect. In other words, these documents, if they accurately
depict Centerline’s payroll registry, would establish that Wattree was falsely accused of
fraud and was wrongfully determined to have been overpaid or to have engaged in fraud.
The Appeals Tribunal issued a decision on September 21, 2023. The Appeals
Tribunal found that a deputy of the Division mailed to Wattree on December 21, 2022, a
6 The Commission apparently understood Wattree’s attachment of excerpts of these documents as a request to submit additional evidence after the Appeals Tribunal hearing. However, these documents were presented to the Division prior to the hearing, were expressly noticed by the Appeals Tribunal referee, and the information concerning the relevant dates was discussed in detail at the hearing.
8 determination that Wattree was overpaid benefits by reason of fraud. The Appeals
Tribunal found that Wattree filed an appeal on April 11, 2023. The Appeals Tribunal
found that Wattree did not file the appeal sooner because he had not received the
determination.
The Appeals Tribunal ultimately concluded that Wattree’s appeal was untimely,
and that the statutes do not provide a good-cause provision to extend the deadline for late
appeals from overpayment determinations.
Wattree appealed to the Commission. The Commission affirmed and adopted the
decision of the Appeals Tribunal.
Wattree now appeals to this court.
Standard of Review
Appellate review of decisions of the Commission is governed by article V, section
18 of the Missouri Constitution and section 288.210. 7 Ward v. Div. of Emp. Sec., 600
S.W.3d 283, 286 (Mo. App. W.D. 2020). Article V, section 18 of the Missouri
Constitution was crafted in furtherance of the separation of powers with the obvious
purpose and requirement “that the judiciary stand as an independent check against abuse
by the executive branch when it undertakes a judicial or quasi-judicial function.” See
Spire Missouri, Inc. v. Pub. Serv. Comm’n, 618 S.W.3d 225, 232 (Mo. banc 2021).
Pursuant to article V, section 18, judicial review of administrative findings and decisions
7 Statutory references are to RSMo 2016, as updated.
9 that are judicial or quasi-judicial and affect private rights “shall include the determination
whether the same are authorized by law, and, in cases in which a hearing is required by
law, whether the same are supported by competent and substantial evidence upon the
whole record.” Mo. Const. art. V, § 18; Spire Missouri, 618 S.W.3d at 231.
Questions of law are reviewed de novo. Difatta-Wheaton v. Dolphin Capital
Corp., 271 S.W.3d 594, 595 (Mo. banc 2008).
In determining whether a finding or decision is supported by competent and
substantial evidence upon the whole record, a reviewing court considers whether the
administrative agency “could have reasonably made its findings, and reached its result,
upon consideration of all the evidence before it.” Hornbeck v. Spectra Painting, Inc., 370
S.W.3d 624, 629 (Mo. banc 2012) (quoting Wood v. Wagner Elec. Corp., 197 S.W.2d
647, 649 (Mo. banc 1946)). The reviewing court does not view the evidence and
inferences in the light most favorable to the administrative decision. Spire Missouri, 618
S.W.3d at 231. Rather, “a court reviewing factual findings by an administrative agency
must consider all of the evidence that was before the agency and all of the reasonable
inferences that may be drawn from that evidence, including the evidence and inferences
that the agency rejected in making its findings.” Seck v. Dep’t of Transp., 434 S.W.3d
74, 79 (Mo. banc 2014). This is not to suggest that a reviewing court is authorized to
substitute its own judgment for that of the agency or to make factual findings in the first
instance. Ferry v. Bd. of Educ. of Jefferson City Pub. Sch. Dist., 641 S.W.3d 203, 206
(Mo. banc 2022). However, if, after reviewing the whole record, the reviewing court is
10 convinced that the administrative agency’s finding or decision is not supported by
competent and substantial evidence, or is against the overwhelming weight of the
evidence, then the finding or decision may be reversed. See Spire Missouri, 618 S.W.3d
at 231-32; see also Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-223 (Mo.
banc 2003)). This approach grants an appropriate measure of deference to the agency’s
role as finder of fact, while also adhering to the independent responsibility entrusted to
the judiciary by the people of Missouri in the Missouri Constitution. Spire Missouri, 618
S.W.3d at 232; Mo. Const. art. V, § 18.
Briefing Deficiencies
Before addressing Wattree’s arguments, we note that his statement of facts and
argument fail to contain references to the record on appeal, as required in Rule 84.04(c)
and Rule 84.04(e) respectively. His brief does not include a separately designated point
relied on, as required under Rule 84.04(d); nor a statement of preservation, as required
under Rule 84.04(e). “Compliance with Rule 84.04 briefing requirements is mandatory
in order to ensure that appellate courts do not become advocates by speculating on facts
and on arguments that have not been made.” Johnes v. Div. of Emp. Sec., 669 S.W.3d
344, 349 (Mo. App. W.D. 2023) (citation omitted). The deficiencies in Wattree’s brief
render his appeal subject to dismissal. However, it is our preference to decide an appeal
on the merits where we can understand the appellant’s argument. Id. In this matter, it is
clear that Wattree is arguing that he did not receive proper notice of the overpayment by
fraud determination.
11 Wattree makes further arguments that he presented proof to the Division and the
Appeals Tribunal that he did not work during the weeks that he was accused of working
and failing to report his earnings. However, that question is not before this Court, as
“[o]ur review is limited to those issues that were determined by the Commission in its
decision.” Miller v. Div. of Emp. Sec., 670 S.W.3d 444, 449 (Mo. App. W.D. 2023)
(citation omitted). In this matter, the Commission affirmed and adopted the decision of
the Appeals Tribunal, which determined that Wattree’s appeal of the deputy’s
determination that he was overpaid by reason of fraud was untimely. Accordingly, the
only issue properly before this court is whether his appeal of the overpayment by fraud
determination was timely.
Analysis
Wattree argues that he did not receive proper notice of the determination that he
was overpaid by fraud. Regarding the statutory notice requirements, section 288.380.9(2)
addresses the time to appeal a determination of overpayment by fraud and provides:
Unless the individual or employer within thirty calendar days after notice of such determination of overpayment by fraud is either delivered in person or mailed to the last known address of such individual or employer files an appeal from such determination, it shall be final. Proceedings on the appeal shall be conducted in accordance with section 288.190.
Thus, Wattree had thirty calendar days from the date that notice was mailed to his last
known address with which to file an appeal of the overpayment by fraud determination. 8
8 Missouri courts have previously determined that there is no good cause exception to overpayment determinations pursuant to section 288.380. See Kline v. Div. of Emp. Sec., 662
12 The Appeals Tribunal found that the Division mailed Wattree an overpayment by fraud
determination on December 21, 2022, which started the thirty-day appeal window.
However, as discussed below, this finding of the Commission and the Appeals
Tribunal – that the notice was mailed on December 21, 2022 – was not supported by
competent and substantial evidence upon the whole record. Absent compliance with the
notice procedures of section 288.380.9(2), Wattree’s thirty-day window to appeal could
not open and certainly could not close as found by the Appeals Tribunal and the
Commission. Accordingly, the Commission’s decision must be reversed.
In this matter, the Appeals Tribunal referee found that the Division mailed to
Wattree a notice of overpayment by fraud on December 21, 2022. The evidence in the
record in support of this finding was a copy of an unsigned “Overpayment and Penalty
Determination” notice that listed a date of mailing as December 21, 2022. The record did
not include an affidavit or postal receipt or other evidence that the mailing of the notice
actually occurred. No one from the Division participated in the hearing aside from the
referee serving as neutral arbiter, and thus there was no testimony provided at the hearing
regarding the mailing of the notice.
Missouri courts have long found that the presence of a copy of a letter in a legal
file falls short of competent and substantial evidence to support a finding that a letter was
S.W.3d 158, 162 (Mo. App. E.D. 2023); Poljarevic v. Div. of Emp. Sec., 676 S.W.3d 521, 524 (Mo. App. E.D. 2023); Marx v. Div. of Emp. Sec., 666 S.W.3d 252, 258 (Mo. App. E.D. 2023); Mujakic v. Div. of Emp. Sec., 663 S.W.3d 501, 505 (Mo. App. E.D. 2023). Wattree makes no arguments that these courts have incorrectly interpreted section 288.380.
13 indeed mailed on a particular date. See Boyd v. Div. of Emp. Sec., 687 S.W.3d 44, 49-50
(Mo. App. E.D. 2024); see also Weston Transp., Inc. v. Sharp, 926 S.W.2d 219, 221 (Mo.
App. W.D. 1996), overruled in part on other grounds by Hampton v. Big Boy Steel
Erection, 121 S.W.3d 220, 223 (Mo. banc 2003); Saveway Gas & Appliance, Inc. v.
Indus. Comm’n of Missouri, 552 S.W.2d 76, 78 (Mo. App. S.D. 1977).
Although not specifically addressed by Boyd or Weston, and, although not
addressed in the Appeals Tribunal’s decision, we note that section 288.245 provides:
“The records of the division shall constitute prima facie evidence of the date of mailing
or the date of electronic transmission of any notice, determination or other paper mailed
or electronically transmitted under this chapter.” The General Assembly did not provide
a definition for “prima facie evidence.”
Generally, “prima facie evidence” is a legal phrase long-utilized by courts and
legislative bodies that has been defined and described as:
Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.
“The legislative branch may create an evidential presumption, or a rule of ‘prima facie’ evidence, i.e., a rule which does not shut out evidence, but merely declares that certain conduct shall suffice as evidence until the opponent produces contrary evidence.” John H. Wigmore, A Students’ Textbook of the Law of Evidence 237 (1935).
Black’s Law Dictionary (12th ed. 2024). Missouri courts have similarly described the
phrase: “Prima facie evidence is such evidence which does not necessarily compel a
verdict for the party whose contention it supports, but ‘is sufficient to satisfy the burden
14 of proof to support a verdict in favor of the party by whom it is introduced when not
rebutted by other evidence.’” See Hodel v. Dir. of Rev., 61 S.W.3d 274, 278 n.7 (Mo.
App. S.D. 2001) (quoting State ex rel. State Dep’t of Pub. Health & Welfare v. Hogg, 466
S.W.2d 167, 170 (Mo. App. S.D. 1971)).
However, prima facie evidence is not conclusive evidence. See id.; see also Cavic
v. Missouri Rsch. Laboratories, Inc., 416 S.W.2d 6, 9 (Mo. App. S.L.D. 1967). Prima
facie evidence may be rebutted when an opposing party presents substantial controverting
evidence. Kellogg v. Murphy, 164 S.W.2d 285, 293-94 (Mo. 1942). When rebutted by
substantial controverting evidence, the prima facie status of the evidence falls away, and
the evidence must be evaluated by the trier of fact against the contrary evidence
according to its actual evidentiary value. See id.
In this matter, Wattree presented substantial controverting evidence to rebut the
notation in the Division’s records regarding the December 21, 2022 mailing date.
Wattree testified that he never received the overpayment by fraud determination that was
supposedly mailed to him. The Appeals Tribunal referee found this testimony credible in
finding that Wattree never received the overpayment by fraud determination. The record
contains further evidence that serves to weaken any inference that a notation in the
Division’s records was unimpeachable. The “Overpayment Details” contain an error that
is obvious on the face of the document. Wattree was determined to be overpaid due to his
own fraud by failing to report his earnings for the week ending October 24, 2020.
However, the “Overpayment Details” clearly show that the Division’s own audit revealed
15 that Wattree had no earnings for that week. The fact that this error is obvious on the face
of the document, yet remained uncorrected, gives rise to the reasonable inferences that
the Division wished to process with haste the overpayment by fraud determination
regardless of whether it was accurate and to recover amounts paid to Wattree regardless
of whether the amounts constituted an overpayment. This additional evidence allows for
the reasonable inference that the reason why Wattree never received the notice of
overpayment by fraud was because the notice was never sent. 9
After the Division’s prima facie evidence was rebutted, the actual evidentiary
value of the listed mailing date on a document in the Division’s records fell below the
requisite competent and substantial evidentiary standard in support of a finding that the
Division mailed to Wattree a notice of the overpayment by fraud determination on
December 21, 2022. See Boyd, 687 S.W.3d at 49-50; see also Weston Transp., 926
S.W.2d at 221; Saveway Gas & Appliance, 552 S.W.2d at 78. This is particularly true in
light of the evidence contained in the whole record.
Our review of the whole record reveals that there was no competent and
substantial evidence in support of the Commission’s finding that the Division mailed to
Wattree a notice of the overpayment by fraud determination on December 21, 2022.
9 There are further reasonable inferences that could be drawn from the Division’s recordkeeping. We note several omissions from the record on appeal, such as the omission of the evidence presented by Wattree to the Division prior to the Appeals Tribunal hearing (and which was noticed and discussed in detail at the telephone hearing), which apparently consisted of a certified pay register from his employer that, if accurately depicting the employer’s pay register, would indicate that the Division’s entire case against Wattree was based on false information.
16 Accordingly, the record indicates that notice of the overpayment by fraud determination
was first provided in conjunction with the certified assessment letters, which were mailed
in late March of 2023, and which Wattree timely appealed on April 11, 2023.
Accordingly, the Commission’s decision – that Wattree’s appeal of the overpayment by
fraud determination was untimely – is reversed.
Conclusion
The Commission’s decision is reversed. The cause is remanded to the
Commission for further proceedings on the merits of Wattree’s appeal of the
overpayment by fraud determination. Efforts should be made to ensure that the evidence
that Wattree has previously presented to the Division and to the Appeals Tribunal referee
at the hearing, which apparently consisted of a certified pay register from his employer,
and which was, for some reason, not included in the record on appeal, is evaluated.
___________________________________ Thomas N. Chapman, Presiding Judge
All concur.