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2014 Ark. App. 113
ARKANSAS COURT OF APPEALS
DIVISION I
No. E-13-687
Opinion Delivered February 12, 2014
ROBERT PATTERSON
APPELLANT APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2013-BR-01851]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES
APPELLEE REMANDED
KENNETH S. HIXSON, Judge
Appellant Robert Patterson appeals the May 30, 2013 decision of the Appeal Tribunal
that found Patterson liable to repay $5360 in unemployment benefits to which Patterson
was not entitled pursuant to Arkansas Code Annotated section 11-10-532(a) (Supp. 2013)
(fraudulent overpayment). The period at issue was for weekly benefits paid to him between
January 9 and June 5, 2010, during which Patterson did not report his correct wages received.
The Board of Review denied his request for appeal pursuant to Arkansas Code Annotated
section 11-10-525(a), and he filed a timely appeal to us, seeking review of the Appeal
Tribunal decision, pursuant to Arkansas Code Annotated section 11-10-525(f). We remand.
The record on appeal is confusing. It appears that there were two overpayment-of-
benefit cases going on simultaneously regarding Patterson, and references to each case were
evidently intermingled with the other. This appeal pertains to alleged overpayment of
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benefits for the period of January 9, 2010, through June 5, 2010. This claim originated with
a 901 A Audit Request to the employer dated November 1, 2011. This claim is designated
as claim number 2013-BR-01851 and will be referred to herein as the “June Claim.” While
the June Claim was being prosecuted, another audit to determine whether overpayment of
benefits was made for the period of July 10, 2010, through December 25, 2010. This claim
originated with a 901 A Audit Request to the employer dated December 15, 2011. While
all of the documents related to that audit are not contained in the record before us on appeal,
it appears that this audit is designated as claim number 2012-BR-01011, and will be referred
to herein as the “December Claim.”
In both, the Department of Workforce Services sought to recover overpayment of
unemployment compensation, alleging that Patterson submitted incorrect wage information
for the respective periods. In the June Claim, the Department alleged overpayment in the
amount of $5360. The Department determined that Patterson was liable to repay the sum
of $5360, and it is the June Claim addressed in this appeal. In the December Claim, the
Department alleged overpayment in the amount of $6479. Although not entirely clear on
the record before us, it appears that the Department found Patterson liable to repay $6479 to
the fund, and Patterson failed to timely appeal.
On appeal of the June Claim to the Appeal Tribunal, it affirmed the earlier finding that
Patterson should repay $5360 in overpaid unemployment benefits. The confusion arises upon
the review of the Reasoning and Conclusions issued by the Tribunal and the statute it
purported to apply:
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REASONING AND CONCLUSIONS: The Department issued a determination
that the claimant did not report his correct wages from January 9, 2010, through June
5, 2010. That determination was affirmed on appeal to the Board of Review in docket number
2012-BR-01011 [the December Claim]. As the claimant did not report correct wages,
he was at fault in causing the overpayment. Therefore, the claimant shall be liable to
repay the overpayment.
DECISION: The Notice of Fraud Determination issued by the Department under
Ark. Code Ann. §11-10-532(a) is affirmed. The claimant is liable to repay $5360 to the
fund.
(Emphasis added.)
It appears that the Tribunal was confused regarding the simultaneous, yet independent,
claims. We are presented with (1) no findings that the claimant made a “knowing”
misrepresentation or omission to the Department, or, (2) if the relevant findings were made
in the December Claim proceeding, those findings are not in the record on appeal to us.
There are differing types of overpayment determinations in section 11-10-532,
depending on the intent of the claimant. The most serious determination is found at section
11-10-532(a), which provides that if the claimant is found to have knowingly made a false
statement or misrepresentation or omission of material fact, then the claimant shall be liable
to repay the amount to the fund, and upon which a ten-percent penalty attaches. Id. at
subsection (a)(1) and (a)(2). The other type of overpayment determination is found at 532(b),
which provides that if the claimant received unemployment benefits by reasons other
than fraud or willful misrepresentation or omission, then the claimant shall be liable for
repayment of the amount of the overpayment only; the claimant is not assessed the penalty.
Id. at subsection (b)(1). Subsection (b)(2) permits the Department to waive recovery of the
overpayment if a finding is made that the overpayment was received “without fault” of the
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claimant and upon a finding that recovery of overpayment “would be against equity and good
conscience.”
Here, at the Department of Workforce Services level, the Department made a “fraud”
determination and stated:
There were no facts developed in this case. . . . As a result of disqualification . . . in
accordance with § 11-10-532(a)(1) it is determined that you have been over paid
benefits. . . . . Once the overpayment becomes final . . ., the amount owed shall
accrue interest at the rate of 10% per year . . . . In addition, beginning on July 1,
2001, a penalty of 10% of the amount of overpayment . . . shall be assessed on fraud
overpayments.
Patterson appealed the Department’s determination to the Appeal Tribunal. The
Appeal Tribunal recited the issue before it as whether Patterson received unemployment
benefits to which he was not entitled “as a result of making a false statement or
misrepresentation of a material fact knowing it to be false or knowingly failing to disclose a
material fact” pursuant to “Arkansas Code Annotated section 11-10-532(a).” The Tribunal
decision does not specifically address the issue of interest and penalty, but it does affirm the
Department’s decision under subsection (a). The Tribunal compounds the confusion in its
Reasoning and Conclusions by finding that Patterson was “at fault” in causing the
overpayment. The statute references “fault” only in subsection (b) as it relates to the issue of
whether to waive recovery of overpayment on an equitable basis. The Tribunal has, perhaps
inadvertently, combined “fraud” terminology under subsection (a) with “fault” terminology
under subsection (b).
The Board of Review’s findings of fact are conclusive if supported by substantial
evidence, which is such relevant evidence that a reasonable mind might accept as adequate
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to support a conclusion. Magee v. Dir.,
75 Ark. App. 115,
55 S.W.3d 321 (2001). We review
the Board’s findings of fact in the light most favorable to the Board’s decision, and credibility
calls are for the finder of fact.
Id. If fair-minded persons could reach the Board’s conclusion,
it must be affirmed.
Id. Notably, the appellate courts require sufficient findings of fact and
conclusions of law to review on appeal from a Board of Review decision.
Id.
Here, the Appeal Tribunal rendered no findings of fact, nor were any developed at the
Department level. The transcript of the Appeal Tribunal hearing does not contain any
evidence or facts regarding whether Patterson made a knowingly false statement or omission;
no credibility determination was made. The only evidence regarding the submission of
incorrect wages was that Patterson testified that he followed the directions of the agency’s
representative. The Tribunal may have intended to rely upon the documents found in the
December Claim, but those are not a part of the record on appeal.
If adequate findings of fact are not made on the issue presented, we remand to the
Board for it to provide findings of fact and conclusions of law upon which to perform proper
appellate review. See Johnson v. Dir., 2013 Ark. App. 74; Bergman v. Dir.,
2009 Ark. App.
724; Magee v. Dir.,
75 Ark. App. 115,
55 S.W.3d 321 (2001). The Appeal Tribunal failed to
render any findings on the issue presented—whether Patterson’s failure to correctly report his
earnings during those weeks was knowingly fraudulent, as contemplated by subsection (a).
Consequently, we remand.
Remanded.
PITTMAN and WALMSLEY, JJ., agree.
Robert Patterson, pro se appellant.
Phyllis Edwards, for appellee.
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