Champion v. Employment Dept. ( 2023 )

71
Submitted January 6, affirmed March 29, 2023
Ellen K. CHAMPION,
Petitioner,
v.
EMPLOYMENT DEPARTMENT,
Respondent.
Employment Appeals Board
2022EAB0554; A179360
528 P3d 323
Petitioner seeks judicial review of an Employment Appeals Board (EAB)
decision upholding the Oregon Employment Department’s (OED) denial of her
application for Pandemic Unemployment Assistance (PUA). She argues that she
is a “covered individual” under the CARES Act and therefore is eligible for PUA.
Held: EAB’s conclusion that petitioner did not qualify as a “covered individual”
was supported by evidence in the record, and EAB adequately explained its
reasoning in its decision. Because EAB’s decision was supported by substantial
evidence and substantial reason, EAB did not err in upholding OED’s denial of
petitioner’s application for PUA.
Affirmed.
Ellen K. Champion filed the brief pro se.
Denise G. Fjordbeck, waived appearance for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
72 Champion v. Employment Dept.
HELLMAN, J.
Petitioner seeks judicial review of an Employment
Appeals Board (EAB) decision upholding the Oregon
Employment Department’s (OED) denial of her application
for Pandemic Unemployment Assistance (PUA). In three
assignments of error, petitioner argues that EAB erred
in making various findings of fact and conclusions of law.
Although EAB could have been more straightforward in
its reasoning, we conclude that that EAB’s decision was
supported by substantial evidence and substantial reason.
Accordingly, we affirm.
We will set aside or remand a board’s order if “the
order is not supported by substantial evidence in the record.
Substantial evidence exists to support a finding of fact when
the record, viewed as a whole, would permit a reasonable per-
son to make that finding.” ORS 183.482(8)(c). “Substantial
evidence” includes “substantial reason.” Put another way,
the board must provide an explanation for how it reached
its conclusion. Castro v. Board of Parole, 232 Or App 75, 83,
220 P3d 772 (2009).
On appeal, petitioner argues that she qualifies as a
“covered individual” under the CARES Act and was thus eli-
gible for PUA. Under the CARES Act, a person is considered a
“covered individual” if they are not eligible for other compen-
sation, including regular unemployment benefits, and if they
self-certify that they are “otherwise able to work and avail-
able to work within the meaning of applicable State Law,” but
cannot do so due to one of 11 reasons related to the COVID-19
pandemic. Pub L 116-136, § 2102(a)(3). Those reasons include
that “the individual has been diagnosed with COVID-19 or is
experiencing symptoms of COVID-19 and seeking a medical
diagnosis,” or “has become the breadwinner or major support
for a household because the head of the household has died as a
direct result of COVID-19.” Pub L 116-136, § 2102(a)(3)(A)(ii)(I).
“Direct result” as used in section 2102 means that “the unem-
ployment is an immediate result of the major disaster itself,
and not the result of a longer chain of events precipitated or
exacerbated by the disaster.” 20 CFR § 625.5(c); U.S. Dept of
Labor, Unemployment Insurance Program Letter No. 16-20,
(Apr 5, 2020) (UIPL 16-20) at I-7.
Cite as 325 Or App 71 (2023) 73
The Continued Assistance for Unemployed Workers
Act (2020) (CAA) made certain changes to the CARES Act.
Among those changes was the removal of the language
allowing for self-certification in favor of language dictating
that, to qualify as a “covered individual,” the applicant must
submit documentation to substantiate their employment
or self-employment within 90 days of their application or
December 27, 2020, whichever date is later. CAA § 241(a);
UIPL 16-20, Change 4, (Jan 8, 2021) at I-10. Importantly,
section 201(f) of the CAA modified the CARES Act such that
claims filed after December 27, 2020, could be backdated to
no earlier than December 6, 2020. UIPL 16-20, Change 4,
(Jan 8, 2021) at I-19.
Petitioner argues that she qualifies as a “covered
individual” because beginning in March 2020, petitioner and
her fiancé lost income due to the Governor’s stay-at-home
order. Alternatively, she argues that she qualified after her
fiancé passed away due to complications from COVID-19.
The OED representative testified that if petitioner and her
fiancé did not qualify for regular unemployment insurance
(UI) payments at the time of the stay-at-home order, they
might have qualified for PUA if they had applied sometime
between March 2020 and December 27, 2020. Similarly,
petitioner might have qualified for PUA if she did not qual-
ify for UI after the death of her fiancé.
However, petitioner did not apply right after either
of those two events. Instead, petitioner waited to apply
until a year after the death of her fiancé and nearly one-
and-a-half years after the start of the stay-at-home order.
At the time of her application, the CAA was the law. And,
as set forth in the CAA, applications could only be back-
dated to December 6, 2020. That meant that many of the
events that petitioner referenced in her application, which
may have factually qualified her for PUA, occurred outside
the window of time that OED could consider in its decision.
In addition, when she did apply, petitioner provided very
little documentary support for her application. Because of
the lack of documentation in the record, OED was unable to
definitively determine that petitioner qualified as a “covered
individual.”
74 Champion v. Employment Dept.
On appeal, EAB also determined that petitioner
was not a “covered individual” because she had accepted and
then voluntarily separated from various jobs in the months
between the asserted “COVID reasons” and the weeks for
which she claimed PUA benefits.1
Having reviewed the record, we conclude that EAB’s
decision was supported by substantial evidence. Petitioner
does not contest that she held various jobs in the time
between the asserted “COVID reasons” for her unemploy-
ment and the weeks for which she claimed PUA coverage.
Nor does she contest that she voluntarily separated from
those positions. And while the record indicates that COVID-
19 related issues contributed to petitioner’s decision to leave
those jobs, substantial evidence supports EAB’s decision
that petitioner’s unemployment was “the result of a longer
chain of events precipitated or exacerbated by the disaster,”
which would disqualify petitioner from benefits. 20 CFR
§ 625.5(c); UIPL 16-20, (Apr 5, 2020) at I-7.
As to substantial reason, EAB explained that it was
petitioner’s voluntary separation from various employers,
which occurred after the asserted “COVID reasons,” that
caused petitioner’s unemployment and not, as petitioner
argues, the “COVID reasons” themselves. That reasoned
explanation, coupled with the evidence in the record, sat-
isfies EAB’s burden to provide substantial reason for its
conclusions.
We reach a similar conclusion regarding petitioner’s
argument that because she contracted COVID-19, she was
eligible for PUA. Although petitioner testified that she
entered her quarantine information into the OED filing sys-
tem, OED was unable to locate it, and petitioner testified
that she no longer had access to that information.
Under the CAA, an individual was no longer able to
self-certify eligibility for benefits. Thus, petitioner’s benefit
1
Given that the EAB ultimately based its decision on petitioner’s voluntary
separation from various jobs and not on whether petitioner was self-employed or
became the household’s primary breadwinner after the death of her fiancé, the
portions of its decision questioning her credibility complicated our review and,
indeed, caused us to wonder whether the agency’s ultimate decision was based on
something other than the articulated legal analysis. Ultimately, those concerns
did not affect the disposition of this case, though they did give us pause.
Cite as 325 Or App 71 (2023) 75
eligibility depended both on the fact that she contracted
COVID-19 and that she was able to provide documentary
proof of her illness. EAB’s denial of benefits was not due to
a determination that petitioner did not contract COVID-19.
Instead, it was because petitioner “did not offer evidence to
show when she was rendered unemployed or unavailable to
work during the weeks at issue as a direct result of COVID-19.”
Given the lack of documentary evidence in the record, we
conclude that EAB’s decision was based on substantial evi-
dence. And we find that the decision was supported by sub-
stantial reason, given EAB’s explanation coupled with the
absence of evidence.
Our role as an appellate court reviewing a decision
of EAB is not to find facts, nor to relitigate what was liti-
gated below. Our role is one of error correction. In exercising
that role, we are bound by the record before us and our stan-
dard of review. On this record and reviewing for substantial
evidence and substantial reason, we conclude that EAB did
not err when it determined that petitioner did not qualify for
PUA under the CARES Act and CAA.
Affirmed.