Opinion
No. E 12-681
02-06-2013
PAMELA JOHNSON APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES APPELLEE
Pamela Johnson, pro se appellant. Phyllis Edwards, Associate General Counsel, for appellee.
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[NO. 2011-BR-03397]
AFFIRMED IN PART;
REMANDED IN PART
KENNETH S. HIXSON , Judge
This appeal concerns whether appellant Pamela Johnson must repay $14,045 in unemployment benefits allegedly overpaid to her from November 21, 2009, through June 19, 2010. The Department found that Ms. Johnson was liable to repay those benefits pursuant to Ark. Code Ann. § 11-10-532(b) (Repl. 2002), which provides:
(b)(1) If the director finds that a person has received an amount as benefits under this chapter to which he or she was not entitled by reasons other than fraud, willful misrepresentation, or willful nondisclosure of facts, the person shall be liable to repay the amount to the fund.The Appeal Tribunal affirmed the Department's decision requiring Ms. Johnson to repay all of the overpayment, and that decision was affirmed and adopted by the Board of Review. The Board made the following findings and conclusions:
(2) In lieu of requiring the repayment, the director may recover the amount by deduction of any future benefits payable to the person under this chapter unless the director finds that the overpayment was received without fault on the part of the recipient and that its recovery would be against equity and good conscience.
FINDINGS OF FACT: The claimant received a Notice of Non-Fraud Overpayment Determination for $14,045 in benefits received for weeks ending November 21, 2009 through June 19, 2010. The claimant applied for disability in April 2010. The claimant was approved for full disability in June 2010 and received $29,550.00 in back pay beginning March 2009. The claimant receives $1,970 each month in disability benefits. The claimant indicated that she was able to work and available for work on each week that she filed her claim.We affirm in part and remand in part.
REASONING AND CONCLUSIONS: The claimant was at fault in causing the overpayment. The claimant testified she felt she was not able to work due to her health and chose to file for disability. Yet, the claimant indicated each week that she could work. In addition, the claimant continued to file claims through July and did not report the disability income she received when she filed her claim each week. Because the claimant was at fault in causing the overpayment, equity and good conscience is not considered. Therefore, the claimant shall be liable to repay the fund.
The Board of Review determined that Ms. Johnson should repay the fund for unemployment benefits she received for the entire period from November 21, 2009, through June 19, 2010. However, we determine that additional findings should be made by the Board for the period from November 21, 2009, through April 2010, the date the claimant applied for disability benefits. During this period the record indicated that Ms. Johnson testified that she was willing and able to work, was applying for work, and her physician refused to opine that she was totally disabled. On remand, for this pertinent period, the Board should determine whether the claimant was "at fault"; and, if the claimant was not at fault, whether equity and good conscience require repayment. We affirm the Board's determination that Ms. Johnson should repay the benefits received from April 2010 through June 19, 2010.
Ms. Johnson has a history of significant health problems, including coronary artery disease, for which she underwent a six-bypass surgery. Ms. Johnson indicated that after applying for and receiving unemployment benefits beginning in November 2009, she tried unsuccessfully to gain employment pursuant to her doctor's encouragement for her to return to the workforce. She said that her doctor would not declare her disabled at that time. According to Ms. Johnson, she was unable to find work, and the stress of her situation caused her health to further deteriorate. By April 2010, the claimant's physician concluded that the appellant was totally disabled, and the appellant applied for disability benefits. Ms. Johnson was quickly approved for full disability in June 2010 and she received $29,550 in disability back pay retroactive to March 2009.
Our standard of review on appeal is whether the Board's decision was supported by substantial evidence. See Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). We hold that substantial evidence supports the Board's finding that Ms. Johnson was at fault in causing the overpayment for the period between April 2010 and June 19, 2010. Beginning in April 2010, the claimant continued to apply for, and receive, unemployment benefits while at the same time she had filed a disability claim stating that she was unable to work and was, in fact, totally disabled. The claimant should be required to repay the benefits received during that period.
Ms. Johnson testified that before filing for disability in April 2010, she thought she could work per her doctor's orders and actively sought work. The fact that she ultimately received disability back pay to March 2009 does not in itself answer the question of whether Ms. Johnson was at fault in causing the overpayment of her unemployment benefits received between November 2009 and April 2010. Although she was subsequently determined by the Social Security Administration to be totally disabled during this time period, she thought that she was physically capable of working according to her testimony.
Matters of credibility are left to the Board, Bergman v. Director, 2010 Ark. App. 729, 379 S.W.3d 625, but the Board in this case made no finding as to whether Ms. Johnson's testimony on this issue was credible. If Ms. Johnson was being truthful, then she may not be at fault for all of the overpayment. And if the Board determines that this portion of the overpayment was received without fault, it must then make a determination as to whether its recovery would be against equity and good conscience.
When an administrative agency fails to make a finding on a pertinent issue, we do not decide the question in the first instance, but instead remand for a ruling. McAlister v. Director, 2012 Ark. App. 349. Because we conclude that the current findings of the Board do not adequately support its decision ordering Ms. Johnson to repay the entire amount of the overpayment, we remand for additional findings of fact. The Board's decision is affirmed as to repayment of the benefits received after Ms. Johnson filed for disability in April 2010, but remanded for further findings and a redetermination of whether she must repay the remaining benefits received from November 21, 2009, through April 2010.
Affirmed in part; remanded in part.
WOOD and BROWN, JJ., agree.
Pamela Johnson, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.