Michael Grant v. Director, Department of Workforce Services

Cite as 2023 Ark. App. 169ARKANSAS COURT OF APPEALS
DIVISION II
No.E-22-109
Opinion Delivered March 29, 2023
MICHAEL GRANT APPEAL FROM THE ARKANSAS
APPELLANT BOARD OF REVIEW
[NO. 2021-BR-04061]
V.
DIRECTOR, DEPARTMENT OF REVERSED AND REMANDED
WORKFORCE SERVICES WITH INSTRUCTIONS TO
APPELLEE REOPEN THE CASE
BRANDON J. HARRISON, Chief Judge
In this unbriefed employment-security case, Michael Grant appeals the Arkansas
Board of Review’s (Board’s) decision denying his request to reopen his case and adopting
the Arkansas Appeal Tribunal’s conclusion that he had not shown good cause to reopen the
matter. We reverse and remand with instruction to reopen the case.
Our standard of review in unemployment-insurance cases is well settled. We do not
conduct de novo reviews in appeals from the Board. Keener v. Dir., 2021 Ark. App. 88,
618 S.W.3d 446. Instead, we review the evidence and all reasonable inferences deducible
therefrom in the light most favorable to the Board’s findings of fact. Id. We will accept the
Board’s findings of fact as conclusive if supported by substantial evidence, which is such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. Even when there is evidence upon which the Board might have reached a different
decision, our scope of judicial review is limited to a determination of whether the Board
1
could have reasonably reached the decision rendered on the basis of the evidence presented.
Id. We defer credibility calls to the Board as the finder of fact as well as the weight to be
accorded to testimony presented to the Board. Id.On 5 June 2020, the Division of Workforce Services (DWS) notified Grant that he
was entitled to Pandemic Unemployment Assistance (PUA) in the amount of $132 a week.
But on 28 May 2021, DWS mailed Grant an amended “Notice of Determination of
Entitlement” and informed him that he was not eligible for PUA because he was not a
covered individual within the meaning of section 2102(a)(3) of the CARES Act. Grant
appealed the decision to the Appeal Tribunal, which conducted a hearing on 26 July 2021.
Grant did not appear at the hearing, however, so the hearing officer issued an opinion
affirming the “Notice of Determination of Entitlement.” According to the hearing officer’s
notes, there was no answer at Grant’s telephone number.
At Grant’s request, the Appeal Tribunal convened a second hearing on 27 August
2021 to determine whether Grant had good cause for failing to appear at the previous
hearing and was therefore entitled to have the matter reopened. Grant explained that when
he was called for the first hearing, “[i]t rang once and then hung up. . . . And so I called
right back and I was on hold for 45 minutes. . . . [W]henever they finally answered, they
said it had been closed and I had to file an appeal.” He said that he had “bad service” that
day. Grant was unable to provide phone records to verify that he had called back within
ten minutes.
On August 30, the Appeal Tribunal issued an opinion finding that Grant had not
shown good cause for reopening the matter. The opinion explained that Grant had not
2
called ahead of time as stated on the notice of telephone hearing and that he did not have
proof of phone records to substantiate his claim that he called back and was placed on hold
for forty-five minutes.
Grant appealed to the Board, which denied his request to reopen the matter. The
Board’s opinion explained,
To support his testimony, the claimant supplied the Board with phone
records showing calls to or from the Tribunal’s office number 501-682-1063.
Two such calls are shown and they have different symbols next to the
numbers, which perhaps denote incoming calls and outgoing calls. The two
calls are listed as having been placed at 3:38 and 3:42 respectively. The first
call was presumably an incoming call from the Tribunal and was placed at
3:38 p.m. The symbols next to it may denote a missed incoming call. The
Board notes that the hearing was scheduled for 3:15 p.m. The claimant
apparently attempted to return the call at 3:42 p.m. He then called an 800
number at 4:10 p.m. . . . There is no indication of the claimant making a call
to the Tribunal at or before 3:25, which would be 10 minutes from the
scheduled starting time of the hearing, as instructed by the Notice.
We conclude that the Board’s findings are not supported by substantial evidence.
The only testimony before the Board was Grant’s, and he testified that he had “bad service”
that day and immediately called back after missing a phone call from the Tribunal. The
Board noted that the hearing was scheduled to start at 3:15 p.m. and that Grant had not
called the Tribunal by 3:25 p.m., but the phone records admitted by the Board show that
the Tribunal did not call Grant until 3:38 p.m. and that Grant called back four minutes later.
Based on these circumstances, we reverse and remand for further proceedings.
Reversed and remanded with instructions to reopen the case.
BARRETT and MURPHY, JJ., agree.
Michael Grant, pro se appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
3