Cite as 2022 Ark. App. 226
ARKANSAS COURT OF APPEALS
DIVISION III
No. E-21-222
ALICIA ERIVES Opinion Delivered May 11, 2022
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2021-BR-00071]
DIRECTOR, DIVISION OF WORKFORCE
SERVICES
APPELLEE AFFRIMED
MIKE MURPHY, Judge
Appellant Alicia Erives appeals the ruling of the Board of Review (Board) affirming
the Appeal Tribunal’s (Tribunal’s) finding that she filed an untimely appeal that was not due
to circumstances beyond her control and that she must repay unemployment benefits. Erives
argues that the Board’s decision is not supported by substantial evidence. We affirm.
On August 14, 2020, the Division of Workforce Services (Agency) issued a “Notice
of Nonfraud Overpayment Determination” to Erives, finding that she must repay $13,970
in unemployment benefits. The determination letter stated that she had twenty days to file
an appeal, thus making the last day to file a timely appeal September 3, 2020. She thereafter
filed an untimely appeal of this determination to the Tribunal on September 10, 2020 (case
No. 2020-AT-11649). Pursuant to Paulino v. Daniels, 269 Ark. 676, 559 S.W.2d 760 (Ark.
Ct. App. 1980), the Tribunal set the matter for a hearing on December 16 to determine
whether the untimeliness was beyond Erives’s control.
At the hearing, Erives testified that she did not remember the date she received her
letter determination. When asked why she did not file the appeal within twenty days as the
determination letter instructed, Erives testified that, according to the postmaster, her mail
was running behind due to COVID-19. Additionally, she testified that when she received
the letter, she did not have an application for an appeal so she tried to contact the Agency
to get the form, but she struggled getting ahold of someone for weeks. Erives said once
someone got back to her, she faxed in the appeal. She testified that she had copies of her
emails to the Agency. The hearing officer asked why she did not just write out the appeal
without a written form like the determination letter said was allowed. Erives responded she
did, but she never got a reply. She stated that she had a picture somewhere in her phone to
prove it. At the end of the hearing, Erives asked if she could email or mail in her own
evidence and information, but the hearing officer informed her that the instructions on the
appeal sheet stated that all the documentation must have been submitted prior to the
hearing. The Tribunal dismissed her appeal, finding that the untimely filing was not due to
circumstances beyond her control. The Tribunal mailed this decision to her on December
17, 2020.
On December 30, Erives filed a timely appeal of this decision to the Board (case No.
2021-BR-00071). Without conducting a hearing, the Board affirmed the decision of the
Tribunal. The decision stated that “the record reflects a reasonable opportunity, at the
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hearing before the Appeal Tribunal for the presentation of evidence.” Specifically, the Board
found
The claimant received the determination, but does not recall reading the appeal rights
paragraph. She also could not recall when she received it, but mentioned that her
mail had been running late. She expressed that she did not have an appeal form, so
she contacted the local office to request one. As soon as one was sent, she completed
it and sent it in. She testified that she was unaware that it was late. The Board notes
that the claimant supplied copies of text messages between herself and the Division
with her appeal to the Board. Those messages were dated September 9 and September
10, 2020. The last day to file a timely appeal was September 3, 2020. The claimant
has not shown circumstances beyond her control for the delay in filing the appeal.
Therefore, the Board affirms the Tribunal’s decision to dismiss the appeal.
Erives timely appealed the Board’s decision. The sole issue on appeal is whether the
Board erred in affirming the determination that the untimely filing was not due to
circumstances beyond Erives control.
The findings of fact by the Board are conclusive if they are supported by substantial
evidence. Worden v. Dir., 2013 Ark. App. 579, at 2. Substantial evidence is evidence such
that a reasonable mind might accept as adequate to support a conclusion. Id. Our review is
limited to a determination of whether the Board could reasonably reach its decision on the
evidence before it. Id. We review evidence and all reasonable inferences in the light most
favorable to the Board’s findings. Id. Even when there is evidence on which the Board might
have reached a different decision, the scope of judicial review is limited to a determination
of whether the Board could reasonably reach its decision upon the evidence before it. Id.
To appeal the Agency determination, a claimant must file a written notice of appeal
with the Tribunal within twenty calendar days of the mailing date of the determination. Ark.
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Code Ann. § 11-10-524(a)(1) (Supp. 2021). If the appeal is not filed within the statutory time
period, the appeal may still be considered timely if the late filing was the result of
circumstances beyond appellant’s control. Ark. Code Ann. § 11-10-524(a)(2).
Erives contends that while the appeal was admittedly filed late, the Board found the
filing was late without any meaningful analysis. Specifically, Erives argues that the Board
failed to analyze the following evidence: Erives’s testimony that she had spoken with the
postmaster about her mail running late and was informed it was due to the COVID-19
pandemic; she sent a letter to the Tribunal, which was not documented in the file or
otherwise noted; and she had been trying to contact the Agency’s office without being able
to reach anyone.
Erives testified, “Due to COVID, mail was running behind, my postmaster said, on
my road.” Erives failed to provide any further support to this testimony. The credibility of
Erives and the weight accorded to her testimony is a matter to be resolved by the Board.
Johnson v. Dir., 84 Ark. App. 349, 141 S.W.3d 1 (2004). Erives’s self-serving testimony that
she timely sent a letter to the Tribunal was not supported by the record. While Erives did
have proof of email contact with the Agency, the communication occurred roughly a week
after the time for appeal had expired.
Overall, this is a fact-intensive inquiry driven in large part by credibility
determinations. Price v. Dir., 2011 Ark. App. 100, at 5. The burden of proof that
circumstances beyond her control prevented her from timely filing an appeal was on Erives,
and she failed to provide anything but self-serving testimony and proof of communication
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that occurred after the time to file had expired. Because substantial evidence supports the
Board’s decision, we affirm the dismissal for lack of jurisdiction. Thus, the Board’s
determination is affirmed, and the appeal is dismissed.
Affirmed.
VIRDEN and WHITEAKER, JJ., agree.
Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, by: George M. Rozzell IV, for appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
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