Alicia Erives v. Director, Division of Workforce Services
2022 Ark. App. 226
Ark. Ct. App.2022Background
- On August 14, 2020 the Division of Workforce Services issued a nonfraud overpayment determination finding Erives must repay $13,970 and stating a 20‑day appeal deadline (making September 3, 2020 the last timely day).
- Erives filed a written appeal on September 10, 2020 (untimely) and the Appeal Tribunal scheduled a December 16 hearing to decide whether the late filing was due to circumstances beyond her control.
- At the hearing Erives testified she didn’t recall the mailing date, that local mail was delayed due to COVID‑19 (per her postmaster), she had trouble obtaining an appeal form from the Agency, and she attempted to submit an informal appeal but received no reply.
- The Tribunal found Erives failed to prove circumstances beyond her control caused the delay and dismissed the appeal for lack of jurisdiction; that decision was mailed December 17, 2020.
- Erives timely appealed to the Board, which affirmed the Tribunal without a new hearing, noting the record showed text messages dated September 9–10 (after the September 3 deadline) and that Erives had not proven excusable delay.
- Erives appealed to the Arkansas Court of Appeals, which reviewed whether the Board’s factual findings were supported by substantial evidence and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Erives’ untimely appeal was filed due to circumstances beyond her control so as to toll the 20‑day statutory appeal period | Erives: mail delays from COVID, inability to get an appeal form, attempted informal appeal and contact attempts excused the late filing | Agency/Board: record shows communications occurred after the deadline, no persuasive evidence of mail delay or timely filing; credibility and burden on claimant to prove excusable delay | The Board’s finding that Erives failed to show circumstances beyond her control is supported by substantial evidence; affirmance of dismissal for lack of jurisdiction |
Key Cases Cited
- Paulino v. Daniels, 269 Ark. 676, 559 S.W.2d 760 (Ark. Ct. App. 1980) (authorizes Tribunal hearing to determine whether untimely appeal was due to circumstances beyond claimant’s control)
- Johnson v. Director, 84 Ark. App. 349, 141 S.W.3d 1 (2004) (credibility and weight of testimony are for the Board to resolve)