Kizzie McDowell v. Director, Department of Workforce Services , 2023 Ark. App. 167 ( 2023 )

Cite as 2023 Ark. App. 167ARKANSAS COURT OF APPEALS
DIVISION III
No. E-22-82
Opinion Delivered March 15, 2023
KIZZIE MCDOWELL
APPELLANT APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V.
[NO. 2021-BR-04702]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES REVERSED AND REMANDED
APPELLEE
WAYMOND M. BROWN, Judge
This is an unbriefed unemployment benefits case. Appellant Kizzie McDowell
(McDowell) appeals the Arkansas Board of Review’s (the Board’s) determination finding that
she is liable to repay $3,290 in unemployment benefits to the Department of Workforce
Services (DWS). We do not reach the merits here and instead reverse and remand this case
as the appeal is premature.
On April 3, 2020, McDowell filed an initial claim for unemployment benefits. From
that claim, McDowell received benefits for the week ending July 11, 2020, through the week
ending October 31, 2020, totaling $3,290. Thereafter, the Division issued a determination
on June 3, 2021, denying McDowell benefits under Ark. Code Ann. § 11-10-513(a) (Supp.
2021) on finding that McDowell “voluntarily left last work without good cause connected
with the work due to an illness, pregnancy, or disability of themself or that of an immediate
family member but without making reasonable efforts to preserve her employment prior to
leaving pursuant to Ark. Code Ann. § 11-10-5-l3(b).” That determination led to the
overpayment. Following this, McDowell filed an untimely appeal of that determination, and
the Appeal Tribunal (Tribunal) issued a decision in appeal No. 2021-AT-17302 finding that
the untimely filing of the appeal was not due to circumstances beyond her control. In
response, McDowell timely appealed the Tribunal’s decision to the Board, which reversed
the Tribunal’s decision and remanded the case to the Tribunal with instructions to conduct
a hearing regarding McDowell’s separation from work.
Now, specific to the case before us, on July 30, 2021, McDowell was issued a notice
of non-fraud overpayment determination, finding that she was liable to repay $3,290 in
benefits pursuant to Ark. Code Ann. § 11-10-532(b) (Supp. 2021). In response, McDowell
filed a timely appeal of this determination to the Tribunal, which conducted a hearing on
August 31, 2021, and affirmed the Division’s determination in appeal No. 2021-AT-17304.
Following this, McDowell timely appealed the Tribunal’s decision to the Board.
The Board, in appeal No. 2021-BR-04702, affirmed the Tribunal’s determination
finding that
[a]lthough the Board in Appeal No. 2021-BR-04701 remanded the case to the
Appeal Tribunal with instructions to conduct a hearing regarding the claimant's
separation from work, the Notice of Agency Determination is still in effect as of the
date of this decision. As such, the overpayment is still in effect. The overpayment
was not the direct result of an error by the Division and an equity and good
conscience review is not warranted. Therefore, the decision of the Appeal Tribunal
in Appeal No. 202 l-AT-17304 is affirmed on finding that the claimant is liable to
repay benefits.
2
We disagree. From our review of the record, deciding McDowell’s liability for
repayment here would be premature, when the ultimate question of McDowell’s eligibility
has not been decided, and an appeal is pending on the resolution of this question.1 As the
record reflects, The Board remanded appeal No. 2021-AT-17302 to determine whether
McDowell “voluntarily left last work without good cause connected with the work due to an
illness, pregnancy, or disability of themself or that of an immediate family member, but
without making reasonable efforts to preserve her employment prior to leaving pursuant to
Ark. Code Ann. § 11-10-5 l3(b).” The finality of that appeal directly impacts the appeal
before us because it addresses what caused the alleged overpayment of benefits.2
Thus, because the hearing on repayment, was premature, we reverse and remand for
a new hearing once the eligibility determination in appeal No. 2021-AT-17302 has been
resolved and become final for appellate purposes.
Reversed and remanded.
VIRDEN and GRUBER, JJ., agree.
Kizzie McDowell, pro se appellant.
1
Brannan v. Everett, 5 Ark. App. 271, 636 S.W.2d 301 (1982) (holding that a final
decision regarding the appellant’s liability for repayment of benefits was premature when the
ultimate question of his eligibility had not yet been resolved); and Thurman v. Everett, 6 Ark.
App. 340, 342, 341, 642 S.W.2d 323, 324 (1982) (reversing and remanding for a new hearing
on “the issue of repayment in the event the appeal of the overpayment issue is finally decided
in favor of the agency,” even though appellant neither raised the issue in the hearing nor
filed a brief and recognizing that even as the opinion was being written “the issue may be
moot”).
2
Holloway v. Dir., 2012 Ark. App. 635, at 2–3.
3
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
4