Andrew Bushnell v. Director, Arkansas Department of Commerce, Division of Workforce Services ( 2022 )

Cite as 2022 Ark. App. 194ARKANSAS 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.
4