Byers v. Dir.

Cite as 2014 Ark. App. 392ARKANSAS COURT OF APPEALS
DIVISION I
No. E-14-52
JEREMY BYERS Opinion Delivered June 18, 2014
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2013-BR-3418]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and
ARKANSAS DEPARTMENT OF
HEALTH
APPELLEES REVERSED AND REMANDED
ROBIN F. WYNNE, Judge
Jeremy Byers appeals from a decision of the Board of Review (Board) in which the
Board refused to consider additional evidence and denied his claim for benefits. We hold that
the Board abused its discretion in refusing to consider the additional evidence, and we reverse
and remand for additional proceedings.
Jeremy Byers worked as a night-shift triage operator for the Arkansas Department of
Health’s ConnectCare call center from September 4, 2012, until he was fired on September
12, 2013, on the grounds that he consistently failed to meet the requirements set for his job.
Byers initiated the internal grievance process within the Arkansas Department of Health to
contest his firing. The Department of Workforce Services denied benefits on October 7, 2013,
pursuant to Arkansas Code Annotated § 11-10-514, based on its finding that Byers was
discharged from last work for misconduct in connection with work. Byers filed a timely appeal
Cite as 2014 Ark. App. 392of the Department’s determination. The Arkansas Appeals Tribunal (the Tribunal) affirmed the
denial of benefits based on the evidence presented at the hearing on November 4, 2013. Byers
filed an appeal of the Tribunal’s decision on November 11, 2013, and included in that fax
transmission the four-page Grievance Decision Form received by Byers and dated
“11/5/2013.” The Board affirmed the Tribunal’s decision. In its opinion, the Board states:
The claimant testified at the Tribunal hearing that he filed a grievance regarding his
discharge and indicated in his appeal to the Board that he prevailed on the grievance.
Nonetheless, the claimant did not provide the information regarding the grievance at
the Tribunal hearing and this evidence was not before the Tribunal.
The Board’s Instructions for Telephone Hearings given to Byers state that, “If you have
exhibits (written documents) which you want included in the hearing, you should mail them
as soon as possible so the Staff Attorney will receive them before the day of the hearing.”
It is within the Board’s discretion to direct the taking of additional evidence that was
not before the Tribunal. Ark. Code Ann. § 11-10-525(c) (Supp. 2011). There must be an
abuse of that discretion to reverse. Fry v. Director, 16 Ark. App. 204, 698 S.W.2d 816 (1985).
The Board’s refusal to accept the Grievance Decision Form, which was not in Byers’s
possession until the day after the Tribunal hearing, was an abuse of discretion. Byers submitted
new evidence at the first reasonable opportunity and in compliance with the Board’s own
instructions.
Reversed and remanded.
HIXSON and BROWN, JJ., agree.
Jeremy Byers, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.