Dozier v. Everett

Donald L. Corbin, Judge,

concurring. I reluctantly concur in this decision. There are several inconsistencies associated with the case which have caused me some concern.

First, the Board’s decision itself is inconsistent. The decision is as follows:

The claimant had been discharged from his employment, was reinstated with back pay, and was finally laid off with a reduction in the work force on January 18,1982... .The law is specific in that a claimant must have subsequent work to satisfy the disqualification and this claimant has not worked since his layoff on January 18, 1982.

Section 20 (k) (8) of the Act [Ark. Stat. Ann. § 81-1124 (k) (8) (Supp. 1983)] does not require an individual who has been laid off from work due to a reduction in the work force to satisfy a disqualification with employment. The Board’s finding to that effect is simply erroneous. However, the Board went on to affirm the Appeal Tribunal which held that appellant was discharged for misconduct under 20 (k) (8). An appellant disqualified because of misconduct must satisfy the disqualification with at least one week of work, which appellant here does not have.

Second, it is unclear from the record whether claimant was required to satisfy the eight-week penalty before receiving regular benefits. As the majority points out, appellant could satisfy the disqualification by eight weeks of working, eight weeks of filing a claim, or a combination of the two. The testimony of appellant indicates that he did not work any weeks and only claimed for four or five weeks. Also, it is unclear from the record whether appellant’s base period wages were reduced by eight times his weekly benefits amount, which would be required if the agency penalized appellant under Section 5 (b) (1) [Ark. Stat. Ann. § 81-1106 (bj (1) (Supp. 1983).] The lack of evidence in this regard leads me to suspect that when appellant reapplied for benefits in March of 1982, after the grievance had resulted in his reinstatement, the agency ignored the original determination and treated the claim as a new claim and began to pay full benefits. However, the record does not contain sufficient evidence (such as a second Notice of Determination) to support this conclusion; therefore, I must agree to affirm.

Third, although the majority opinion does not address this point, appellee argues that the back wages appellant received cannot satisfy the requirement of employment imposed by Section 20 (k) (8). It should be noted, however, that if appellant had initially received benefits, he would have been required to repay those benefits after receiving the back pay award, on the ground that he received wages related to the weeks for which appellant was drawing benefits. It seems inequitable to me to hold that the receipt of those wages does not satisfy the disqualification of Section 20 (k) (8). In other words, the receipt of back pay wages would disqualify appellant from regular benefits which requires that a claimant be “unemployed”, but does not qualify appellant for FSC benefits which requires a claimant be “employed”.

Our standard of review is set forth in Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978), as follows:

Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board.

Upon the evidence contained in the record, I must agree with the majority that the decision should be affirmed.

However, I believe this appellant may be entitled to relief under Ark. Stat. Ann. § 81-1107 (c) (4) (Supp. 1983) which provides in part:

The Director upon receipt of new evidence may reconsider a nonmonetary determination within three (3) years from the date of the original monetary determination ... .

Even though the time to appeal the original determination of October, 1981, has run, appellant may petition the Commission to make a redetermination based upon the new evidence that appellant was reinstated by his employer, since such evidence was unavailable when the original determination was made. .