Kevin Bennett v. Director, Arkansas Department of Commerce, Division of Workforce Services ( 2022 )

Cite as 2022 Ark. App. 129ARKANSAS COURT OF APPEALS
DIVISION III
No. E-21-329
KEVIN BENNETT Opinion Delivered March 16, 2022
APPELLANT
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2021-BR-01034]
DIRECTOR, ARKANSAS
DEPARTMENT OF COMMERCE,
DIVISION OF WORKFORCE
SERVICES REVERSED AND REMANDED
APPELLEE
RAYMOND R. ABRAMSON, Judge
Kevin Bennett challenges a determination by the Arkansas Board of Review that his
untimely appeal for Pandemic Unemployment Assistance (PUA) was due to a circumstance
that he could control. In doing so, the Board affirmed and adopted the Appeal Tribunal’s
decision that denied Bennett PUA benefits, finding that he was not a covered individual
within the meaning of the CARES Act.1
1
PUA is one of the federal financial-assistance programs that the United States
Congress enacted to provide additional unemployment benefits to help individuals bridge
financial hardships that the COVID-19 pandemic caused. See Coronavirus Aid, Relief, and
Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (codified at 15
U.S.C. §§ 9021–9034).
In his petition to this court, Bennett asserts that he was hospitalized with a diagnosis
of COVID-19 and was not allowed to return to work until he obtained a negative test.
Bennett filed for both state unemployment insurance benefits (regular benefits) and federal
PUA benefits; on August 28, 2020, a notice of determination was mailed to Bennett
informing him that he was not a “covered individual” under the CARES Act. That meant
he was ineligible for PUA benefits.
However, Bennett testified that he believed he needed to await a regular benefit
determination before he could file an appeal.2 Bennett testified that the letter instructed him
to wait for the regular-benefit determination before further pursuing PUA. In November
2020, Bennett received a notice of determination denying him regular benefits, which he
appealed to the Board on November 19. Because November 19 is more than twenty days
after August 28, the Board dismissed it as untimely pursuant to Paulino v. Daniels, 269 Ark.
676, 599 S.W.2d 760 (Ark. App. 1980). This appeal followed.
We have recently addressed the discrepancies and confusion surrounding the
timelines of filing appeals in light of a PUA determination versus other unemployment
claims. See Sharum v. Ark. Dep’t of Com., 2022 Ark. App. 96, ___ S.W.3d ___. For the reasons
2
The Board’s decision notes that Bennett based “his belief on a letter that he said he
received.” In the record before us, there is a letter to Bennett dated July 24, 2020, from the
Arkansas Department of Commerce, Division of Workforce Services, that states he was
“likely eligible for regular Unemployment Insurance benefits or Pandemic Emergency
Unemployment Compensation in lieu of Pandemic Unemployment Assistance. For that
reason, your claim is on hold.”
2
outlined in Sharum, we hold that the Board erred in finding that the lateness of Bennett’s
appeal was not due to circumstances beyond his control.
Specifically, the Appeal Tribunal found that Bennett “was instructed to wait waiting
[sic] on a denial for regular unemployment benefits prior to filing an appeal. The appeal
rights had exhausted by the time the determination was received.” Our court has termed this
the “Paulino vortex.” Sharum, supra.
We reverse the Board of Review’s decision that Bennett’s untimely appeal of the
August 28 PUA determination was because his tardiness was within his control. It was not.
We therefore remand this case to the Board of Review and direct it to reconsider Bennett’s
PUA claim on its merit.
Reversed and remanded.
VIRDEN and MURPHY, JJ., agree.
Kevin Bennett, pro se appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
3