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Term v. Williams

Court of Appeals of Arkansas, Division I

March 4, 2015

MERDET TERM, APPELLANT
v.
ARTEE WILLIAMS, DIRECTOR DEPARTMENT OF WORKFORCE SERVICES AND CARGILL MEAT SOLUTIONS, APPELLEES

Page 292

APPEAL FROM THE ARKANSAS BOARD OF REVIEW. NO. 2014-BR-00758.

Mary E. Goff, Legal Aid of Arkansas, Inc., for appellant.

Phyllis A. Edwards, for appellee.

RITA W. GRUBER, Judge. VIRDEN and GLOVER, JJ., agree.

OPINION

Page 293

RITA W. GRUBER, Judge

Appellant Merdet Term petitions for review of the Arkansas Board of Review's dismissal of her appeal as untimely. We hold there is substantial evidence to support the Board's conclusion and affirm.

In order to appeal a Department of Workforce Services determination, a claimant must file a written notice of appeal with the Appeal Tribunal or any office of the Department within twenty calendar days of the mailing date of the determination. Ark. Code Ann. § 11-10-524(a)(1) (Repl. 2012). 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).

On November 14, 2013, the Department mailed its determination denying appellant unemployment benefits on a finding that she had been discharged for misconduct connected with the work. Appellant did not file an appeal until February 27, 2014.

Pursuant to Arkansas Code Annotated section 11-10-524(a)(2) (Repl. 2012) and Paulino v. Daniels, 269 Ark. 676, 679, 599 S.W.2d 760, 762 (Ark.App. 1980), the Appeal Tribunal conducted a hearing on March 20, 2014, to determine whether the untimeliness was out of appellant's control. At the hearing, appellant explained through a translator that she could not read English. She testified that sometime after receiving the November 14, 2013 mailing, she had gone to her local Department office for clarification and was informed that she had been denied benefits but was not told that she could file an appeal. In her testimony, she stated that she did not remember what date she had gone to the local office. The record does not contain any notation or documentation that she had contacted the Department at any time prior to the filing of her February 27, 2014 appeal. The Tribunal concluded that appellant did not establish that the untimeliness was due to circumstances beyond her control and dismissed the appeal. The Board affirmed. The Board found that there was insufficient evidence to determine that she had visited the local office prior to the deadline for filing the appeal and that she waited approximately three months before seeking the advice of an attorney and filing her appeal.

In appeals of unemployment-compensation cases, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Coker v. Dir., 99 Ark.App. 455, 262 S.W.3d 175 (2007). The findings of fact made by the Board are conclusive if supported by substantial evidence. Id. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could have reasonably reached its decision based on the evidence before it. Id. Issues of credibility of witnesses and the weight to be afforded their testimony are matters for the Board to determine. Bradford v. Director, 83 Ark.App. 332, 338, 128 S.W.3d 20, 23 (2003). Reasons for late filing involve factual issues to be determined by the Board and not this court on appeal. Johnsen v. Dir., 2012 Ark.App. 634, at 1--2.

The issue on appeal is whether appellant's untimely appeal to the Appeal Tribunal was the result of circumstances beyond her control. We hold that substantial evidence supports the Board's conclusion. The Board ...


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