Deborah Beheler Baldwin v. Scott A. Adkins, in his official capacity as Acting Commissioner of WorkForce West Virginia, and WorkForce West Virginia Board of ReviewDeborah Beheler Baldwin v. Scott A. Adkins, in his official capacity as Acting Commissioner of WorkForce West Virginia, and WorkForce West Virginia Board of Review
D. Christopher Hedges, Esq.
L. Dante diTrapano, Esq.
David H. Carriger, Esq.
Calwell Luce diTrapano, PLLC
Charleston, West Virginia
Counsel for Petitioner
Patrick Salango, Esq.
Preston & Salango, PLLC
Charleston, West Virginia
Counsel for Petitioner
Roberta F. Green, Esq.
Caleb B. David, Esq.
Shuman McCuskey Slicer, PLLC
Charleston, West Virginia
Counsel for Respondents
Ben Salango, Esq.
Salango Law, PLLC
Charleston, West Virginia
Counsel for Petitioner
JUDGE CHARLES O. LORENSEN delivered the Opinion of the Court.
JUDGE DANIEL W. GREEAR, voluntarily recused.
JUDGE ROBERT E. RICHARDSON, sitting by temporary assignment.
VACATED AND REMANDED
LORENSEN, JUDGE:
Petitioner, Deborah Beheler Baldwin, appeals the WorkForce West Virginia Board of Review‘s (“Board“) decision dated December 12, 2023, reversing in part and affirming in part an administrative law judge‘s (“ALJ“) decision which found that Ms. Baldwin was overpaid three weeks of unemployment compensation benefits in the Spring of 2021, but that WorkForce West Virginia (“WorkForce“) was time barred from collecting the overpayments. On appeal, the Board agreed that Ms. Baldwin was overpaid three weeks of benefits. However, it determined that the ALJ applied the wrong collection limit period for the first two weeks of overpayments, and that WorkForce could pursue collection of the overpayment for those two weeks. The Board remanded the case for a calculation of the overpaid benefits.
After careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the Board failed to give Ms. Baldwin proper notice and an opportunity to be heard regarding the Board‘s determination that Ms. Baldwin failed to disclose her weekly earnings on the online portal application form, and that the administrative record contains insufficient evidence to conclude that the benefit overpayments were made by reason of error, nondisclosure, or misrepresentation. We therefore vacate the Board‘s December
I. FACTUAL AND PROCEDURAL BACKGROUND
In April of 2020, Ms. Baldwin was employed by Alliance Healthcare Services, Inc. (“Alliance“). Due to COVID-19 pandemic restrictions, Ms. Baldwin‘s employment was reduced from full-time to part-time. As a result, on April 5, 2020, Ms. Baldwin filed a claim for unemployment compensation benefits on the WorkForce online portal. Ms. Baldwin‘s online submission states that she remained employed by Alliance, and that she was filing for unemployment compensation benefits due to a “reduction in full-time hours available.”
On April 17, 2020, Ms. Baldwin filed a weekly application for unemployment compensation benefits for the week ending on April 11, 2020. Ms. Baldwin‘s online portal application indicates she was not working, and that she did not receive wages that week. She filed a similar application on April 27, 2020, for the week ending on April 18, 2020. Ms. Baldwin again indicated on the online portal form that she did not work or receive wages that week. On May 11, 2020, Ms. Baldwin filed a third application for unemployment compensation benefits for the week ending on May 9, 2020. According to the May 11, 2020, online portal application, she received $451.20 in earnings for twenty-four hours of work during the week. Ms. Baldwin does not dispute that she was paid unemployment compensation benefits for those three weeks.
On December 18, 2020, Alliance completed a “Claims Audit Form” at the request of WorkForce. On the audit form, Alliance reported that for the week ending on April 11, 2020, Ms. Baldwin worked 34.66 hours and received $745.61 in gross wages; that for the week ending on April 18, 2020, Ms. Baldwin worked 29.16 hours and received $547.38 in gross wages; and that for the week ending on May 9, 2020, Ms. Baldwin worked 24.36 hours and received $457.97 in gross wages. Based on the discrepancy between Ms. Baldwin‘s application for unemployment compensation benefits and the wages reported by Alliance, WorkForce determined Ms. Baldwin was overpaid unemployment compensation benefits.
On August 9, 2023, WorkForce notified Ms. Baldwin of her obligation to repay the overpaid benefits. According to the notice, WorkForce determined that Ms. Baldwin was overpaid $2,054.00 for the weeks ending on April 11, 2020, April 18, 2020, and May 9, 2020. Ms. Baldwin appealed the overpayment determination. In her appeal letter, Ms. Baldwin stated that her application was based on reduced earnings capacity during the COVID-19 pandemic outbreak, and that she remained employed on a part-time basis during the pay periods in question. Ms. Baldwin contended that she used WorkForce‘s online portal as instructed and attempted to further contact WorkForce multiple times to assist her or to confirm she was filing the correct claim application and when she noticed the amounts allotted on her benefit card. Ms. Baldwin alleged her calls were never returned, and that any mistake was on the part of WorkForce. Ms. Baldwin‘s
appeal letter also notes that on March 29, 2021, West Virginia Governor Jim Justice issued Executive Order 11-21, which, Ms. Baldwin asserts, prohibits WorkForce from pursuing Pandemic Unemployment Assistance benefit overpayments that were obtained without fault on the part of the recipient.
A scheduled hearing was held before the ALJ on September 26, 2023. Ms. Baldwin appeared unrepresented. WorkForce appeared in person through a manager, Amber Harper. Alliance made no appearance. Ms. Harper testified that Alliance disputed Ms. Baldwin‘s statements on her unemployment compensation benefit applications through the online portal that she was not working or receiving wages for the weeks ending on April 11, 2020, and April 18, 2020, and that Ms. Baldwin actually received $651.51 in gross wages for the
she did not address Ms. Baldwin‘s letter asserting difficulty with the online portal in making her claim for benefits for underemployment.
Ms. Baldwin gave testimony and admitted that she received wages for the weeks ending on April 11, 2020, and April 18, 2020. However, Ms. Baldwin stated that it was her belief that she was collecting Pandemic Unemployment Assistance benefits for reduced earnings, and that she was not at fault for any benefit overpayment. Ms. Baldwin further testified that she was not familiar with the process for obtaining unemployment compensation benefits, and she argued that West Virginia Executive Order 11-21 prohibits WorkForce from collecting overpayments not based on fraud. The ALJ read the Executive Order into the hearing record, and he also stated that there was confusion among the ALJs whether to apply a two- or five-year statute of limitations in cases like Ms. Baldwin‘s.
On October 11, 2023, the ALJ issued a decision. The ALJ noted that WorkForce alleged an aggregate overpayment of $2,054.00 of benefits for the weeks ending on April 11, 2020, April 18, 2020, and May 9, 2020.2 The ALJ stated that even though Ms. Baldwin believes she was not at fault for the wage discrepancies, WorkForce proved that an overpayment occurred. Nevertheless, the ALJ determined that Ms. Baldwin
underreported her wages by mistake, and that the two-year statute of limitations provided in
WorkForce appealed the ALJ‘s October 11, 2023, decision.3 In its written comments to the Board dated December 5, 2023,4 WorkForce argued that the ALJ should not have applied the two-year statute of limitations from
The Board issued a decision dated December 12, 2023, reversing in part and affirming in part the decision of the ALJ. The Board determined that for the weeks ending on April 11, 2020, and April 18, 2020, Ms. Baldwin failed to disclose accurate wage information and that the five-year statute of limitations in
Incorporated into the Board‘s decision is a form detailing a party‘s appeal rights. Under the heading “When to File” the form states, “[t]he Notice of Appeal must be filed with the Intermediate Court of Appeals within THIRTY DAYS after the mailing date listed on this notice.”5 The third page of the Board‘s decision has a space titled “Date Mailed,” but the Board failed to insert a date corresponding to the “Date Mailed” section. However, the envelope mailed to Ms. Baldwin shows a postage meter date of December
26, 2023. The Board mailed Ms. Baldwin a copy of its decision, but the Board did not mail a copy to her attorney of record. Ms. Baldwin filed her Notice of Appeal in this Court on January 26, 2024, thirty-one days after the postage meter date shown on the envelope.
II. STANDARD OF REVIEW
“The findings of fact of the Board of Review of [WorkForce West Virginia] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.” Syl. Pt. 3, Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994).
III. DISCUSSION
Ms. Baldwin lists three assignments of error: 1) the Board erred when it found that Ms. Baldwin failed to disclose her wages for the weeks ending on April 11, 2020, and April 18, 2020, because actions under
Virginia Code § 21A-10-8, which was raised for the first time on appeal. We first address the jurisdictional issues implicated in this case.
A. Timely Appeal
WorkForce argues that this Court does not have jurisdiction to consider Ms. Baldwin‘s case because she untimely filed her appeal.
The decision of the board shall be final and benefits shall be paid or denied in accordance therewith, unless a claimant, last employer, or other interested party appeals to the circuit court of Kanawha county within thirty days after mailing of notification of the board‘s decision....6
Ms. Baldwin concedes that her notice of appeal was filed with the Intermediate Court of Appeals on January 26, 2024, which—if December 26, 2023, were the operative date to
her attorney, despite knowing Ms. Baldwin was represented and her attorney‘s instruction that the Board direct all future contacts regarding the claim to his office. Ms. Baldwin also emphasizes the Board‘s failure to insert the mailing date in its decision.
The Board‘s December 12, 2023, decision contains a space on the third page titled “Date Mailed,” after which the Board should insert the date of mailing.7 The Board‘s decision also provides claimants with instructions detailing how to appeal its decisions. At the top of the appeal instructions is a heading titled, “When to File,” which informs claimants of the thirty-day appeal period. The instructions state that a “Notice of Appeal must be filed with the Intermediate Court of Appeals within THIRTY DAYS after the mailing date listed on this notice.” (emphasis in the original). For Ms. Baldwin‘s decision, the Board failed to insert a date after the “Date Mailed” reference. The envelope postage meter date is December 26, 2023, but the “mailing date listed on [the] notice,” as referenced in the appeal instructions, is left blank.8
Ms. Baldwin also argues that the Board failed to send a copy of its December 12, 2023, decision to the proper address. Ms. Baldwin notes that her attorney informed the Board of his representation on December 5, 2023, and directed that all future contacts be made to his office. WorkForce counters that the Board was not required to send a copy of its decision to Ms. Baldwin‘s attorney because the Board is only required to notify claimants of its decisions.
pursuant to
To summarize, the Board failed to adequately inform Ms. Baldwin of the date its decision was mailed, and the Board did not send a copy of the decision to her attorney. These procedural irregularities lead us to conclude that the thirty-day appeal limitation in
Similar to Mizell, the Board failed to provide adequate notice to Ms. Baldwin. The Board did not provide a mailing date in the designated area of the decision, and it did not mail a copy of the decision to Ms. Baldwin‘s designated address, which in this case
was the office of her attorney. We therefore hold that the thirty-day appeal limitation found in
B. Finality of the Board‘s Decision
The Board found that for the weeks ending April 11, 2020, and April 18, 2020, the five-year appeal limitation for nondisclosure in
Adherence to this rule assures that appellate courts resolve entire claims, “rather than [having] appeal[s] on a piecemeal basis.” Id. at 242, 400 S.E.2d at 250. Orders which only partially resolve a legal dispute are considered interlocutory and not final orders subject to appeal. “This rule, however, is limited to those situations where the intermediate appellate court finds that there are disputed issues of fact or law that have not been resolved by the trial court...This general rule does not apply to situations where the trial court has reversed or affirmed the agency decision on the merits.” Id. (citations omitted).
Neither Ms. Baldwin nor WorkForce believe the Board‘s December 12, 2023, decision is interlocutory. We agree. Paxton is the seminal case which discusses whether a remand order renders an appeal interlocutory. In Paxton, the SCAWV considered a circuit court‘s order interlocutory when the order found that Ms. Paxton was subject to illegal discrimination but remanded the case to the Human Rights Commission for it determine the amount of Ms. Paxton‘s lost wages and whether Ms. Paxton attempted to mitigate her damages. In short, the circuit court‘s order left the material issue of damages unresolved.
The instant case is distinguishable from Paxton. Here, the remand for the calculation of “damages” does not require a factual hearing. Neither party challenges WorkForce‘s computation of the overpayment; the only issue in dispute is whether
WorkForce is permitted to pursue an overpayment. The Board‘s decision fully addresses the merits of whether WorkForce can pursue the overpayments, and we consider its December 12, 2023, decision a final order on the merits and subject to appeal.
C. Jurisdiction of the Board
Ms. Baldwin argues that the Board did not have jurisdiction to determine that an overpayment by nondisclosure or misrepresentation was made and that we should not consider these issues on the merits. WorkForce alleges that Ms. Baldwin obtained unemployment compensation benefits through nondisclosure or misrepresentation. According to Ms. Baldwin, WorkForce is required to pursue all allegations of benefit overpayments based on nondisclosure and misrepresentation in circuit court, and WorkForce is prohibited from making administrative determinations of benefit overpayments in the case
Ms. Baldwin relies on
in this code for the collection of past-due payment and shall withhold, in whole or in part, as determined by the commissioner, any future benefits payable to the individual and credit the amount against the overpayment until it is repaid in full.” In short,
Similarly,
A person who, by reason of nondisclosure or misrepresentation, either by himself or another (irrespective of whether such nondisclosure or misrepresentation was known or fraudulent), has received a sum as a benefit under this chapter, shall either have such sum deducted from a future benefit payable to him or shall repay to the commissioner the amount which he has received. Collection shall be made in the same manner as collection of past-due payments against employers as set forth in section sixteen of article five of this chapter, which specifically includes the institution of civil action and collection procedures thereon enumerated in said section: Provided, That such collection or deduction of benefits shall be barred after the expiration of five years....
According to
process may be used when collecting overpayments from claimants who receive unemployment compensation benefits through nondisclosure or misrepresentation.
(a) The commissioner in the name of the state may commence a civil action against an employer who, after due notice, defaults in any payment, interest or penalty thereon required by this chapter. Civil actions under this section shall be given preference on the calendar of the court over all other civil actions except petitions for judicial review under article seven of this chapter and cases arising under the workers’ compensation law. Upon prevailing in any such civil action, the commissioner is entitled to recover attorneys’ fees and costs of action from the employer.
(b) Any payment, interest and penalty thereon due and unpaid under this chapter is a debt due the state in favor of the commissioner....It is a personal obligation of the employer immediately due and owing and is, in addition thereto, a lien that may be enforced as other judgment liens are enforced through the provisions of chapter thirty-eight of this code and the same shall be deemed by the circuit court to be a judgment lien for this purpose against all the property of the employer....:
(c) In addition to all other civil remedies prescribed herein the commissioner may in the name of the state, after giving appropriate notice as required by due process, distrain upon any personal property, including intangibles, of any employer delinquent for any payment, interest and penalty thereon....
(d) In case a business subject to the payments, interest and penalties thereon imposed under this chapter is operated in connection with a receivership or insolvency proceeding in any state court in this state...
(e) The secretary of state of this state shall withhold the issuance of any certificate of
dissolution or withdrawal in the case of any corporation organized under the laws of this state, or organized under the laws of another state and admitted to do
business in this state, until notified by the commissioner that all payments, interest and penalties thereon against any such corporation which is an employer under this chapter have been paid or that provision satisfactory to the commissioner has been made for payment.
(f) In any case where an employer defaults in payments, interest or penalties thereon, for as many as two calendar quarters, which quarters need not be consecutive, and remains delinquent after due notice, the commissioner may bring action in the circuit court of Kanawha County to enjoin that employer from continuing to carry on the business in which such liability was incurred....
(g) Amounts of payments and penalties collected under this section shall be deposited to the credit of the unemployment compensation trust fund....
Ms. Baldwin emphasizes that each subsection of
WorkForce must first bring a civil action to determine whether an overpayment was made. It only details the process by which WorkForce recoups money from claimants after an overpayment is determined. If WorkForce chooses to pursue a collection action directly against a claimant who received benefits through nondisclosure or misrepresentation,
State ex rel. Radcliff v. Davidson, 225 W. Va. 80, 689 S.E.2d 808 (2010), illustrates this process. In Davidson, WorkForce determined that Mr. Davidson was overpaid unemployment compensation benefits by knowingly making false statements. WorkForce notified Mr. Davidson that it was terminating his unemployment compensation benefits. Thereafter, an administrative hearing was held before an ALJ who found that WorkForce established an overpayment occurred. Mr. Davidson did not appeal the ALJ‘s finding, and WorkForce initiated collection proceedings in magistrate court through the provisions of
WorkForce appealed to the SCAWV, which reversed the circuit court‘s ruling. SCAWV determined that WorkForce provided ample evidence of the overpayment
amount. It noted that administrative proceedings were held which established the amount of overpayment, and that Mr. Davidson did not appeal the ALJ‘s finding. SCAWV suggested that Mr. Davidson could challenge findings made in the administrative proceedings but determined that the ALJ‘s findings were evidence of an overpayment.
D. Notice and Sufficiency of the Administrative Record
Ms. Baldwin‘s remaining assignments of error are that the Board erred when it ruled that the five-year collection limit in
of receipt of WorkForce‘s written argument by counsel for Ms. Baldwin deprived her from addressing this argument before the Board made its decision. We agree with Ms. Baldwin that she was given inadequate notice regarding WorkForce‘s claim that the five-year collection period in
If Ms. Baldwin merely made an error in her online portal benefit application forms, a two-year collection limit applies, and WorkForce is barred from collecting the benefit overpayment.
A person who, by reason of error, irrespective of the nature of said error, has received a sum as a benefit under this chapter, shall either have such sum deducted from a future benefit payable to him or shall repay to the commissioner the amount which he has received. Collection shall be made in the same manner as collection of past due payment: Provided, That such collection or deduction of benefits shall be barred after the expiration of two years.
On the other hand, if Ms. Baldwin is responsible for a nondisclosure or misrepresentation that resulted in an overpayment, a five-year collection limit applies, and WorkForce may
pursue overpayment collections.
A person who, by reason of nondisclosure or misrepresentation, either by himself or another (irrespective of whether such nondisclosure or misrepresentation was known or fraudulent), has received a sum as a benefit under this chapter, shall either have such sum deducted from a future benefit payable to him or shall repay to the commissioner the amount which he has received...Provided, That such collection or deduction of benefits shall be barred after the expiration of five years....
The transcript of the ALJ hearing reveals that WorkForce‘s only representative did not allege that Ms. Baldwin failed to disclose or misrepresented her wages. The ALJ did not discuss nondisclosure or misrepresentation. The ALJ mentioned that he and other administrative law judges had discussed whether a two or five-year collection limit applied to similar cases. Importantly, neither WorkForce nor the ALJ addressed
written arguments to the Board which were mailed on the last day the Board accepted submissions from the parties. Ms. Baldwin represented at oral argument that she did not receive WorkForce‘s December 5, 2023, submission to the Board until after the Board decided the appeal of the ALJ‘s decision.
Accordingly, the record demonstrates that Ms. Baldwin was not given sufficient notice of WorkForce‘s claim that the overpayment was due to nondisclosure or
misrepresentation, and the administrative record is insufficient for us to review whether the Board erred in its determination. Moreover, the Board did not address the applicability of the Governor‘s March 29, 2021, Executive Order No. 11-21 to this case. Therefore, we vacate the Board‘s December 12, 2023, decision and remand to the Board with instructions to hold a new hearing. We direct the Board to allow the parties to address whether WorkForce‘s benefit overpayments to Ms. Baldwin for the weeks ending on April 11, 2020, and April 18, 2020, were the result of Ms. Baldwin‘s nondisclosure or misrepresentation in her online application for benefits, or the result of an error. To the extent the Board determines the overpayments resulted from Ms. Baldwin‘s nondisclosure or misrepresentation—and therefore that WorkForce‘s ability to collect the overpayments is subject to the five-year statute of limitations in
IV. CONCLUSION
For the foregoing reasons, the Board‘s December 12, 2023, decision is vacated, and this case is remanded to the Board with instructions to hold a new hearing in this case to allow the development of a sufficient evidentiary record based on the parties’ claims and defenses, and to issue a new decision on the merits consistent with this opinion.
Vacated and Remanded.