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Home > Unemployment Services > Appeals > Appealing a UI Determination
 

Appealing a UI Determination

 

INTRODUCTION

This guide is designed to assist parties throughout the unemployment insurance appeals process in Arkansas. It is intended for informational purposes only. If anything contained herein conflicts with a statute, regulation, or a policy of the Arkansas Appeal Tribunal or Arkansas Board of Review, the statute, regulation, or policy will control.

FREQUENTLY ASKED QUESTIONS

Are Department Determinations appealable?
Is there a time limit for filing an appeal to the Appeal Tribunal?
How do I file an appeal to the Appeal Tribunal?
Should I keep filing my weekly claims if an appeal is filed?
What if my address changes?
Who can take part in the hearing conducted by the Appeal Tribunal?
Can I hire a lawyer to represent me at the hearing?
What if my appeal was filed late?
What if I decide I no longer want to appeal?
Where will my hearing be conducted?
Is it important for me to take part in the hearing?
How should I prepare for my hearing?
What should I do if I have a question?
Can I get my hearing postponed or the location changed?
What if I have documents I want the hearing officer to consider?
Can I have witnesses at my hearing?
What if I need a witness or a document that I cannot get on my own?
Will the hearing be recorded?
What rights do I have at the hearing?
What will the hearing officer do at the hearing?
What are the possible decisions that might be issued?
What happens if I do not take part in the hearing?
Can I appeal the Appeal Tribunal's decision?
Is there a time limit for filing an appeal to the Board of Review?
How do I file an appeal to the Board of Review?
What does the Board of Review do when it receives my appeal?
Will the Board of Review conduct another hearing?
Can I appeal the Board of Review decision?
Must I repay benefits if it is later determined that I was not entitled to them?
What laws govern the appeals process?
What do these "legal" words mean?
How do I get in touch with the Appeal Tribunal, Board of Review, or Court of Appeals?

TABLE OF CONTENTS

Appealing A Department Determination
Time Limit for Filing an Appeal
How to file an Appeal
Important Notice to Claimants about Continuing Claims and Overpayments
The Docket Number and Address Changes
Parties to an Appeal
Representation
Late Appeals
Withdrawal of an Appeal
Hearing Dates/Times/Locations and Notices
The Importance of the Tribunal Hearing
Steps to Prepare for Your Hearing
If you have Questions about the Hearing
Changes in Hearing Dates/Times/Locations
Documents or Other Physical Evidence for the Hearing
Witnesses for the Hearing
Subpoenas for Witnesses or Documents and other Physical Evidence
Recording of the Hearing
Summary of the Parties' Rights at the Hearing
Summary of the Hearing Officer's Duties in Conducting the Hearing
The Decision of Hearing Officer
Failure of an Appellant to Appear at a Hearing and Reopening
Appeal to the Board of Review
Time Limit for Appeal to the Board of Review
How to Appeal to the Board of Review
Procedure on Appeal to the Board of Review
Overpayment of Benefits
Appeal to the Arkansas Court of Appeals Statutory Authority
Glossary
Addresses and Telephone Numbers

APPEALING A DEPARTMENT DETERMINATION

After the Department of Workforce Services (DWS) makes a written determination concerning an unemployment insurance claim, the determination is appealable to the Arkansas Appeal Tribunal. At the Appeal Tribunal level, the parties shall have a reasonable opportunity for a hearing before a hearing officer, followed by the officer's decision on the appeal.

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TIME LIMIT FOR FILING AN APPEAL

An appeal must be filed within twenty (20) calendar days after the mailing date of the determination. If your appeal is mailed, it shall be considered to have been filed as of the date of the postmark on the envelope in which the appeal was contained, which is not necessarily the date the appeal was placed in the mail.


NOTE: Do not delay filing your appeal beyond the twenty (20) day limit. If availability of evidence is a problem, you should file your appeal within the twenty (20) days, keep gathering the evidence you think you need, and notify the Appeal Tribunal, prior to your hearing and pursuant to the instructions on both sides of the Notice of Hearing, that you have evidence to present.


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HOW TO FILE AN APPEAL

An appeal must be in writing and should include the Social Security Number and the name of the claimant in the case. A copy of the determination being appealed should be attached to the appeal. The appellant (the party appealing) may file an appeal by letter or by using a "Petition for Appeal to Appeal Tribunal" (ARK-AT-213) form. Petition forms and help in completing them are available at any DWS office or at the Appeal Tribunal office. However, you should not wait to obtain a petition form, if waiting would delay your appeal beyond the twenty-day limit. To avoid such delay, you may file an appeal by letter. Any DWS office can take an appeal. If the appellant is out of state, the employment security department of that state can assist. The party appealing, or a representative of the appealing party's choice, should sign the appeal. The appeal may be filed, in person or by mail, at any DWS office or at the Appeal Tribunal. The address for mailing an appeal to the Tribunal is: Appeal Tribunal, P.O. Box 8013, Little Rock, AR 72203. If mailed, an appeal is considered filed as of the date of the Postmark, which is not necessarily the date the appeal was placed in the mail. Generally, the Tribunal will consider a faxed appeal as filed on the date of transmission recorded by the facsimile machine. The Tribunal's fax number is 1-501-682-7734.

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IMPORTANT NOTICE TO CLAIMANTS ABOUT CONTINUING CLAIMS AND OVERPAYMENTS

If you are a claimant who is claiming benefits while an appeal regarding your benefits has yet to be decided, you should continue to report to the DWS as required, and file weekly claims. If a decision in an appeal case allows a claimant benefits, benefits will be payable only for any week for which the claimant filed a valid weekly claim form. Also, if a decision which allows a claimant benefits is reversed on appeal, the claimant may be required to repay any benefits received.

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THE DOCKET NUMBER AND ADDRESS CHANGES

After the Appeal Tribunal receives the appeal, it will assign a docket number and schedule a hearing as soon as possible. The docket number will appear on the Notice of Hearing mailed to you. You should list or note this docket number in all correspondence with the Tribunal. If your address changes while you are a party to an appeal, you should immediately notify the Tribunal and the DWS office through which the claim was filed of the change. A party failing to do so may not receive important correspondence about the appeal.

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PARTIES TO AN APPEAL

The claimant and the Director of the DWS are parties to every appeal concerning an unemployment insurance claim. An employer, such as the last employer before a claimant files a claim, may be a party to an appeal, depending upon the employer's legal interest in the case.

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REPRESENTATION

The parties to an appeal have the right to be represented by an attorney or by any other duly authorized agent. However, parties are not required to have professional representation. The party is responsible for any fees charged for services of a representative, but the fees charged a claimant by that representative may not exceed the amount allowed under the Arkansas Employment Security Law in Ark. Code Ann. §11-10-108(b)(2).

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LATE APPEALS

If there is a question as to whether an appeal was filed on time, the Appeal Tribunal will conduct a hearing on the issue of timeliness of the appeal. If the appeal was not filed within twenty (20) calendar days after the mailing date of the determination, the appellant must show that the delay beyond the appeal period was the "result of circumstances beyond the appellant's control" for the appeal to be considered as having been timely filed. Otherwise, the Appeal Tribunal will not have jurisdiction over the determination appealed from; and the Tribunal will dismiss the appeal on that issue(s). Unemployment benefits would then be paid or denied according to the DWS determination. Because dismissal of an appeal based on untimeliness may determine the final result of the appeal, all the parties to the appeal have an interest in any untimeliness issue. The Appeal Tribunal will notify all the parties to allow them opportunity to participate in any hearing on the timeliness of an appeal.

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WITHDRAWAL OF APPEAL

The Appellant may request withdrawal of its appeal at any time before the hearing officer's decision is issued. A request to withdraw may be made orally or in writing. The hearing officer or the Chief Hearing Officer may or may not permit the withdrawal in view of the substantial rights of the parties

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HEARING DATES/TIMES/LOCATIONS AND NOTICES

The hearing officers conduct hearings by telephone, or in person, usually at a local DWS office or at the Appeal Tribunal office in Little Rock. Telephone hearings allow parties to participate in hearings when it would be burdensome for them to travel to a common hearing site. However, any party to an appeal on a claim filed within Arkansas has, upon request, a right to an in-person hearing. If distance between parties is a problem, the party requesting the in-person hearing may have to travel farther than the other interested parties. It should be noted that in-person hearings are not held as often as telephone hearings, and for that reason the time between filing the appeal and holding the hearing might be longer than if the hearing were done by telephone.


When the Tribunal has received documents from DWS regarding the issue on appeal, it will set a hearing for the earliest practical time, and mail a notice of the hearing to all the parties at their last known addresses. Generally, the Tribunal will use the addresses found on the Notice of Department Determination. If your address on that form was incorrect, you should immediately notify the Tribunal of your correct address. The Notice will tell the date and time of the hearing, as well as the place of the hearing or whether the hearing is to be by telephone. The Notice will also identify, in general, the issues for the hearing. The Notice will provide information and instructions on the hearing and preparation for it. A Notice of Telephone Hearing will include special instructions on telephone procedure. Failing to read the Notice's information and instructions thoroughly may hurt you in preparing or presenting your case.


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THE IMPORTANCE OF THE TRIBUNAL HEARING

Arkansas Employment Security Law requires that the Appeal Tribunal provide the parties with a reasonable opportunity for a fair hearing. It is the ONLY opportunity for hearing on the issue(s) appealed which is required by law. The hearing before the Tribunal may be the only opportunity the parties will have to present testimony or other evidence on appeal. The parties should attend the hearing before the Tribunal. Otherwise, the hearing officer will decide the appeal on the basis of information contained in the written record from the DWS. A party should attend the hearing even if the DWS determination was in its favor. Any party failing to attend the hearing could be harmed by not appearing at the hearing to respond to evidence given at that hearing.


No party should fail to present all available evidence to the Hearing Officer under the impression that there will be opportunity to give more complete evidence later. In most cases, testimony or other information not introduced as evidence before the Appeal Tribunal will not be considered upon further appeal. It is far better to present "too much" evidence at the Appeal Tribunal hearing than to assume that another hearing will be held.


The hearing officer will decide the appeal upon the evidence which is in the record by the end of the hearing. The hearing officer will not consider as evidence any information received after the record is closed. If the hearing officer deems it to be appropriate, he may grant a request that the record remain open so that relevant evidence can be mailed in after the hearing has ended. The parties should arrange to have available for the hearing, to testify as witnesses, all persons needed for the case, especially those who have firsthand information about the issues described in the hearing Notice. No party should rely on what it has previously told or written the DWS or the Appeal Tribunal to prove its case. Any such statements made outside of a hearing generally are hearsay. Hearsay also includes testimony of a witness about what someone else said happened. Although hearsay can be evidence in unemployment insurance appeals, often it is given less weight than firsthand testimony taken at the hearing. The parties should also make available for the hearing all documents or other physical evidence about the issues, providing it to the Tribunal prior to hearing time.


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STEPS TO PREPARE FOR YOUR HEARING

  1. Carefully read any correspondence you receive from the Department, the Appeal Tribunal, or the Board of Review.
  2. Be aware of deadlines for filing requests and documents to be used at your hearing. Do not delay in preparing for your hearing. If you have documents you want to use at the hearing, send them right away.
  3. Evaluate and prepare your side of the story. Are there documents you want to use at the hearing? Do you have witnesses you want to testify?
  4. Stay calm. Take notes of statements made which you want to ask questions about or respond to when you testify.
  5. Ask witnesses questions to bring out all the details you think are important.
  6. Enter exhibits. Documents you wish to have considered must be identified at the hearing so the Hearing Officer may enter them into the record of the hearing.
  7. If you bring witnesses, bring people with first-hand knowledge of what you want them to testify about.
  8. Final Statements. Think about the evidence and testimony presented. Tell the Hearing Officer at the end of the hearing why he/she should rule in your favor. Be brief and to the point.

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IF YOU HAVE QUESTIONS ABOUT THE HEARING

Please note that it is not practical to describe all the procedure for every hearing situation in this guide or in a hearing notice. If you do not understand the issues or instructions for a hearing, you may contact the Appeal Tribunal. The Tribunal's telephone number for inquiries is: (501) 682-1063. The Tribunal staff can explain procedures, or the issues in a case, but cannot give the parties legal advice. The parties are responsible for preparing and presenting their cases.

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CHANGES IN HEARING DATES/TIMES/LOCATIONS

After the Appeal Tribunal has scheduled a hearing, the hearing officer or the Chief Hearing Officer will grant a request for a postponement or other change in the date, time, or place of the hearing only for good cause. A party should make the request immediately upon learning of the need for the change, and should send a copy of the request to the opposing party(ies). The request should include a clear statement of the reason a change is needed and a reasonable indication of other dates and times during regular business hours the party will be available for hearing. The Appeal Tribunal will not grant requests for postponement made near the time of the hearing except in extreme emergencies.

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DOCUMENTS OR OTHER PHYSICAL EVIDENCE FOR THE HEARING

Physical evidence may include written or photographic documents or other objects, such as tape recordings or work materials, which relate to a case. Any documents concerning an appeal which the DWS forwards to the Appeal Tribunal from the Department's record of the case are included in the evidence of record before the Tribunal. The parties may review or obtain such documents before the hearing. The Tribunal will send a party copies of those documents, if requested. Also, any documents which the appellant submitted at the time of the appeal will be included in the file, and may be considered as potential exhibits. The Appeal Tribunal should assure distribution copies of those documents.


Examples of the types of evidence which may be considered as additional evidence for a hearing are documents such as employment contracts, work rules, time cards or other attendance records, pay vouchers, discipline reports, medical statements, telephone bills, letters or photographs. Any party which intends to introduce business records into evidence should have someone at the hearing who can explain how such records were prepared. Usually, the person who made a document is the best witness concerning it. If you have additional written material to present at the hearing, you should mail copies of the documents to the Appeal Tribunal and to the opposing party listed on the Notice of Hearing as soon as possible. You may also fax documents to the Appeal Tribunal. The Tribunal's fax number is: (501) 682-7734. However, the Appeal Tribunal may not consider as evidence documents or other items which the Tribunal and all parties have not received sufficiently ahead of time, so the materials can be fairly examined at the hearing.


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WITNESSES FOR THE HEARING

The testimony of witnesses which parties generally find most useful to their cases is testimony, under oath or affirmation at the hearing, by persons who actually observed, or personally experienced, events in the case. A party may find it convenient to have witnesses participate in the hearing voluntarily. However, if you cannot get a person or persons to testify voluntarily, you may wish to request that the person(s) be subpoenaed.

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SUBPOENAS FOR WITNESSES OR DOCUMENTS AND OTHER PHYSICAL EVIDENCE

If a witness does not want to testify or has problems being available for a hearing, a subpoena to compel the witness's appearance may be necessary. Your request to the Appeal Tribunal for a witness subpoena should be in writing, and should list the name(s) and address(es) of the witness(es). The request should also include the reason why that person's testimony is necessary for the appeal hearing, such as a brief statement of what you believe the person knows about the facts of your case.


If someone else has documents or other material which you need for the hearing, you may request that the Appeal Tribunal issue a subpoena for the evidence. The written request should describe the evidence, say how it is connected to the case, and tell the name and address of the person who has the evidence. A subpoena for physical evidence such as documents will usually require someone responsible for the evidence to appear at the hearing to present the evidence or testify about it.


If you need to subpoena a witness, document, or other physical evidence, you should make the request to the Appeal Tribunal immediately to allow enough time to process and serve the subpoena. You may request a subpoena even before you receive a notice of the hearing. If you wait too close to the time of the hearing to request a subpoena, the Tribunal may determine that there is not sufficient time for the witness or person responsible for the evidence to respond to the subpoena. If that occurs, the Tribunal may conduct the hearing and decide the case without the witness's testimony or other evidence. The Appeal Tribunal has the right to consider the need and importance of the testimony or other evidence in ruling whether it will issue a subpoena. For example, if five people observed the same event and you request subpoenas for all five of them, the Tribunal may only issue subpoenas for one or two of those people in the case.


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RECORDING OF THE HEARING

The Appeal Tribunal must tape record the entire hearing. The hearing tape will be a critical part of the evidence reviewed upon any further appeal. As a result, all participants in the hearing need to cooperate in the production of a clear recording. Parties and witnesses need to speak in turn, as directed by the hearing officer. Faulty recording or an inadequate record due to disorder in the hearing will very likely delay the case and may necessitate further proceedings to repair the record.

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SUMMARY OF THE PARTIES' RIGHTS AT THE HEARING

As a party at the hearing you have the right:

  • to appear and testify in your own behalf,
  • to have an interpreter to meet the language/communication needs of a party or a witness,
  • to hire and have representation by an attorney or other duly authorized agent,
  • to present documents or other physical evidence for the record,
  • to examine any documents or other physical evidence in the record and any offered for entry into the record,
  • to have witnesses testify for you and to ask questions of your witnesses,
  • to question opposing parties and their witnesses,
  • to explain or present testimony against evidence harmful to your case,
  • to raise reasonable objections to evidence or procedure,
  • to make a timely request for continuance when surprised by an issue or unexpected evidence, or because of some other unfair disadvantage, and
  • to make summarizing comments (i.e., a closing statement) or to present any further information on the issues before the hearing is closed.


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SUMMARY OF THE HEARING OFFICER'S DUTIES IN CONDUCTING THE HEARING

The hearing officer has sole responsibility for the conduct of the hearing. He is to obtain all evidence which is reasonably available and related to the case. The hearing officer should conduct a fair and impartial hearing at which each party has reasonable opportunity to oppose any other party's evidence. The hearing should involve only those issues properly raised by the appeal from the Department's determination(s) and of which the parties have been given notice. The hearing officer should not allow anyone, including the parties, to interfere with the conduct of the hearing. In conducting the hearing, the hearing officer should:

  1. ensure a clear and orderly record of the hearing;
  2. identify the case and the hearing participants;
  3. explain the purpose of and issues for the hearing;
  4. make clear on the record that any waiver by a party of procedural rights, such as notice of an issue, is knowingly made;
  5. explain the procedure for the hearing, including the order in which the parties will present testimony or other evidence;
  6. describe the evidence of record accrued before the hearing, including any documents which the DWS has forwarded to the Tribunal and any record of a previous hearing;
  7. administer the oath or affirmation required for testimony at the hearing;
  8. question parties and witnesses as necessary to develop the record and obtain the reasonably available evidence concerning the issues;
  9. allow the parties to present any testimony reasonably related to the case and, as the hearing officer deems necessary, assist the parties in asking questions of witnesses and other parties;
  10. enter into the record as properly marked exhibits any documents or other physical evidence timely offered for the hearing and reasonably related to the case;
  11. take administrative notice of laws or regulations of the State of Arkansas or the United States which generally apply to unemployment insurance cases and of commonly known facts or facts readily found from reference sources reasonably known to be accurate;
  12. rule on the written or oral record with regard to requests (motions) or objections of the parties, the admission of evidence into the record, and procedure such as subpoenas or continuing the hearing to another time; and
  13. allow the parties to make summarizing comments (i.e. closing statement), or otherwise ensure, before closing the hearing, that the parties have nothing further to present on the issues.


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THE DECISION OF HEARING OFFICER

If an appeal was timely filed or a hearing officer decided that the appeal should be considered as having been timely filed, then the hearing officer will reach a decision on the merits of the appeal. The decision on the merits will be based upon the evidence of record after the parties have had a hearing (or at least a reasonable opportunity for hearing) on the issues on appeal. The hearing officer's decision on the merits of the appeal will affirm, reverse, or modify the Department's determination; or it will remand the case to the Department for further action. An affirmance leaves the unemployment compensation claim as it was before the filing of the appeal. A reversal reaches the result opposite to the determination. A modification changes the effect of the determination in some way. A remand sends the case back to the Department for further action, usually for a redetermination. The Appeal Tribunal will mail copies of its decision to the parties at their last known addresses. If the decision of hearing officer dismisses an appeal because it was untimely filed, then the Appeal Tribunal decision effectively affirms the Department's determination.

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FAILURE OF AN APPELLANT TO APPEAR AT THE HEARING - AND REOPENING

If you are the appellant from a determination of the DWS and you did not appear at the hearing before the Appeal Tribunal, you may request that the Tribunal reopen the case. The request to reopen should be addressed to the Appeal Tribunal. A request for reopening must be made in writing and must be filed within the same twenty (20) calendar days after the mailing date of the hearing officer's decision as is provided for further appeal to the Board of Review from the decision. If you file a request for reopening after the twenty-day period has passed, before the reopening issue can be considered, a hearing must be scheduled on the timeliness issue which will be conducted by the Board of Review. Then, if that timeliness hearing results in a decision finding the request for reopening timely, the case will be returned to the Appeal Tribunal and the reopening procedure will go forward.


A request for reopening will be granted upon a showing of good cause for the appellant not appearing at the merits hearing. In response to a timely request for reopening, there will be a hearing only on the reopening issue of "good cause" for the nonappearance. Because evidence taken after a reopening may change the final result of the appeal, all the parties to the appeal have an interest in a reopening issue. The Appeal Tribunal will notify all the parties of the hearing to allow them opportunity to participate in any hearing on reopening.


A decision denying reopening of an Appeal Tribunal case leaves in effect the prior decision of the hearing officer, and is appealable to the Board of Review. An order granting reopening of a Tribunal case results in a written decision so stating and the setting of another hearing on the issues involved in the previous decision in the case. The Appeal Tribunal will notify all of the parties of the hearing following granting of the reopening request, to provide the parties with a reasonable opportunity to present their cases. As necessary to avoid repetition or surprise, the Tribunal will specify and make available to the parties the existing record for the hearing, upon written request. Following a hearing after reopening, the Appeal Tribunal will issue a written decision in the case.


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APPEAL TO THE BOARD OF REVIEW

Decisions of hearing officers, including dismissals of untimely appeals, are appealable to the Arkansas Board of Review. A Tribunal decision denying reopening includes the decision which caused the appellant to seek reopening. The merits of that prior Tribunal decision and the denial of reopening are appealable together, as is any other hearing officer's decision except an order of remand. The decision of a hearing officer will include a statement about further appeal rights. Also, there should be included with every Tribunal decision a Notice from the Appeal Tribunal to All Interested Parties which further describes what to do if a party disagrees with the hearing officer's decision. If you are not seeking reopening or if the Appeal Tribunal has already denied your reopening request, you may file an appeal to the Arkansas Board of Review. NOTE: THE IMPORTANT NOTICE TO CLAIMANTS ABOUT CONTINUING CLAIMS AND OVERPAYMENTS remains in effect while any further appeal is pending.

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TIME LIMIT FOR APPEALS TO THE BOARD OF REVIEW

The appeal must be filed within twenty (20) calendar days after the mailing date of the Decision of hearing officer to the last known addresses of the parties. If your appeal is mailed, it shall be considered to have been filed as of the date of the postmark on the envelope in which the appeal was contained, which is not necessarily the date the appeal was placed in the mail.


NOTE: Do not allow gathering evidence to delay an appeal beyond the twenty-day limit. If availability of evidence is a problem, you should file your appeal within twenty (20) days, keep gathering the evidence you think you need, and notify the Board of that.


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HOW TO APPEAL TO THE BOARD OF REVIEW

An application for appeal to the Board of Review must be filed in writing. Always include in your appeal the Appeal Number on the Appeal Tribunal Decision (for example, 2002-AT-___), the Social Security Number of the claimant in the case, and the typed or printed name of the claimant. You may file the application for appeal by letter or by a Petition for Appeal to the Board of Review (ARK-BR-100) form. Petition forms and help in completing them are available at any DWS office or the Appeal Tribunal office or the Board of Review office. However, you should not wait to obtain a petition form, if waiting would delay your appeal beyond the twenty-day limit. To avoid such delay, you may file an appeal using any written means. The appealing party, or designated representative of the party, should sign the appeal. The appeal may be filed, in person or by mail, at any DWS office, at the Appeal Tribunal office, or at the Board of Review. The address for mailing an appeal directly to the Board is: Board of Review. P.O. Box 8016, Little Rock, AR 72203. You will also find the Board's mailing address on the Notice from the Appeal Tribunal to All Interested Parties, which is enclosed with the Decision of hearing officer. If mailed, an appeal is considered filed as of the date of the postmark. In mailing an appeal, it is the appealing party's responsibility to see not only that the appeal is placed in the United States mail within twenty (20) calendar days after the mailing date of the Decision of hearing officer but also that the appeal is postmarked within that time period. The Board will generally consider a faxed appeal as filed on the date recorded by the fax machine, if it is received during normal business hours (8:00 A.M. - 4:30 P.M., Monday through Friday). The Board's fax number is (501) 683-4310.


Although it is not required, you may include in your appeal any argument you may have based on the evidence in the record established by the Appeal Tribunal hearing. If you have no new evidence to present, you may petition the Board of Review to base its decision on its review of all records and testimony in evidence from the Appeal Tribunal. If you have more evidence you wish to present, you must describe the additional evidence to the Board in writing, stating how the evidence relates to the case and why you did not offer it into evidence at the Tribunal hearing. Also, upon written request, the Board will allow the parties a reasonable time to submit written arguments or offers of additional proof. However, you should realize that the Tribunal hearing is the only hearing required by law, and you should not wait to submit evidence to the Board which could have been submitted to the Tribunal. If you have questions about appealing to the Board of Review you may inquire directly to the Board's office. The telephone number for the Board of Review is (501) 683-4300.


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PROCEDURE ON APPEAL TO THE BOARD OF REVIEW

Upon its receipt of an appeal, the Board of Review places the case on its docket and requests that the Appeal Tribunal forward its record of the case to the Board. Then, after a preliminary review of the record and documents on appeal to the Board, the Board of Review sends a letter to the parties stating that the appeal has been received and listing the docket number at the Board. That docket number should be noted in all further correspondence with the Board of Review. If your address changes while you are a party to an appeal to the Board, you should immediately notify the Board and the DWS office through which you filed your claim of the change. A party failing to do so may not receive important correspondence about the appeal. The parties to an appeal before the Board of Review have the same right to obtain representation as before the Appeal Tribunal. If there is a question with regard to whether an appeal was filed timely, that is, filed within the twenty-day appeal period, the Board of Review will direct that a hearing be conducted on the timeliness of the appeal. If the appellant shows that the appeal was timely filed or that it was not filed within the twenty-day appeal period as a result of circumstances beyond the appellant's control, the Board would consider the appeal as having been timely filed and take jurisdiction over the appeal. Otherwise, the Board would dismiss the appeal, and the decision of the Appeal Tribunal hearing officer would remain in effect without the Board having considered the merits of the appeal.

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LIMITATIONS ON FURTHER EVIDENCE AT THE BOARD OF REVIEW

In the vast majority of cases before the Board of Review, the Board decides the issues on appeal by reviewing only the evidence which is in the record at the close of the Appeal Tribunal hearing. If you send the Board information in addition to that which you provided DWS or which the Tribunal accepted as evidence, such argument or offers of additional proof are not automatically accepted as evidence. However, the Board will consider the additional information in relation to the evidence already in the record. The Board will then determine whether to direct that a further hearing be conducted to allow the additional information to be taken into the record as evidence. The Board of Review cannot consider such additional information as evidence in reaching its decision, unless the Board directs that the information be taken in a hearing at which each party has a fair opportunity to dispute such evidence.

The Board of Review may remand the case to the Tribunal for the taking of additional evidence or correction of error, and may direct that the Tribunal issue a new decision following such hearing. That decision of hearing officer would be appealable to the Board of Review. However, in some cases during its review the Board may discover that additional evidence might be especially important to the rights of the parties, even if there was no error at the Tribunal. In such cases, the Board of Review may direct that a further hearing be conducted for the Board by a member of the Board's staff. However, you can expect the hearing by the Board to be conducted using procedures similar to those at the Appeal Tribunal hearings.


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DECISIONS OF THE BOARD OF REVIEW

After the Board has reviewed the complete record of evidence as forwarded by the Appeal Tribunal and any additional evidence the Board may have directed to be taken in further hearing, the Board will reach a decision in the case and mail it to the parties at their last known addresses. The Board of Review may affirm, reverse, or modify the findings and conclusions of the Appeal Tribunal, or remand the case to the Tribunal (as noted above), or remand it to the DWS for further proceedings.

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APPEAL TO THE ARKANSAS COURT OF APPEALS

All decisions of the Board of Review are appealable by Petition for Review to the Arkansas Court of Appeals. However, some preliminary rulings or orders of the Board of Review are not final, appealable orders. Preliminary rulings, even if issued separately, are usually appealable with the Board's final decision in a case. Also, Orders of Remand to the Appeal Tribunal or to DWS are not appealable. Every decision of the Board of Review will include a statement about further appeal rights. Also, there should be included with every Board decision a notice which further describes the procedure for appealing to the Court of Appeals.


The Arkansas Employment Security Law provides some of the procedure for the process of judicial review of Board of Review decisions. In other aspects, the process of judicial review is controlled by the Arkansas Court Rules, especially the Rules of the Supreme Court and Court of Appeals of the State of Arkansas. The law provides that an appeal to the Court of Appeals must be filed within thirty (30) calendar days after the mailing date of the Decision of the Board of Review to the last known addresses of the parties. There is no provision, under either the law or the Court Rules, for a filing date to be determined by the postmark on an appeal mailed to the Court. The filing is effective only when the Clerk's Office actually receives the Petition for Review.


NOTE: The law provides that the Board's findings of fact, if supported by substantial evidence and in the absence of fraud, shall be conclusive. Under the Arkansas Employment Security Law, the Court of Appeals does not consider evidence in addition to the evidence of record before the Board of Review. Instead, if the Court finds need for additional evidence, it may remand the case, order the Board to take additional evidence in hearing, require further findings of fact or conclusions of law, and direct that the Board submit the additional record to the Court with its further findings of fact or conclusions of law.


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OVERPAYMENT OF BENEFITS

Benefits you received to which you were not entitled are known as overpayments. Depending on the situation, these overpayments can be divided into two groups: those which are your fault and those which are not.

If you believe that a benefit check was issued to you improperly or in the wrong amount, do not cash the check. Contact the Benefit Payment Control office immediately for instructions on how to return the check(s).

Fraud Overpayment

A "fraud overpayment" can result if you withhold or misrepresent material facts. A fraud overpayment can result if you accept and cash a benefit check you know or should know you are not entitled to receive.

You must repay a fraud overpayment. The entire overpaid amount is due at the time the Notice of Overpayment is issued. However, the Department does accept installment payments if you notify the Department and reach a suitable payment agreement.

Any overpayment amount not paid by you may be deducted from benefits during that benefit year and for five years thereafter. Additionally, your state income tax refund may be intercepted in order to recoup the overpayment for which you are liable.

Non-Fraud Overpayment

A "non-fraud overpayment" results when it is determined that overpayment was through no fault of your own, or you did not misrepresent or withhold material facts. The overpaid amount may be deducted from future benefit payments during a four-year period immediately following the date of determination of the amount of overpayment. However, if it is determined by the director that it would be against equity and good conscience to recover the overpayment, then you will not be liable to repay the overpayment.

STATUTORY AUTHORITY

The Arkansas Employment Security Law is found in the Arkansas Code of 1987 Annotated, Volume 7; Title 11, Chapter 10 (Ark. Code Ann. §11-10-101 through 11-10-804), as currently supplemented.

Provisions for the procedure described in this guide are found principally at Ark. Code Ann. §11-10-522 through 11-10-531, §11-10-108, and §§11-10-315 through 11-10-317.

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GLOSSARY

Administrative notice is the Hearing Officer's ability to recognize certain facts without obtaining evidence from the parties. These can include, among other things, laws, regulations, historical events, and geographic features.

Affirm is to agree with the previously issued determination or decision.

Appeal Tribunal is the body that holds hearings and issues decisions after a party files an appeal of an Agency Determination. It is the first appeal level.

Appellant is the party who filed the appeal.

Board of Review is the body that reviews cases and issues decisions after a party files an appeal of an Appeal Tribunal decision. It is the second appeal level.

Chief Hearing Officer is the supervisor at the Appeal Tribunal.

Circumstances beyond the appellant's control are those factors which the party filing the appeal did not cause and could not have prevented that caused a delay in filing an appeal.

Claimant is the person who filed a claim for unemployment insurance benefits.

Determination is the Department's decision on the eligibility of the person who filed a claim for unemployment insurance benefits.

Docket is the list of cases that have been appealed.

Docket number is the number given to a case once it is put on the list of cases that have been appealed.

Evidence is proof and may consist of testimony, documents, records, or objects.

Firsthand information is information from somebody who personally observed the event about which s/he is giving information.

Good cause is a reason that excuses an otherwise inexcusable act.

Hearing is the proceeding where a hearing officer takes testimony about the issue that has been appealed.

Hearing Officer is the person who conducts the hearing.

Hearsay is testimony in a hearing of a statement made outside of the hearing that is given to prove the truth of the matter asserted.

Jurisdiction is area of authority.

Last employer is, with few exceptions, the last place the claimant worked before filing a claim for unemployment insurance benefits.

Notice of hearing is the written document that tells you when and where your hearing will be conducted.

On the record is the portion of the hearing that is recorded. It is the only time testimony can be taken.

Parties are those people or organizations entitled to receive notice of the hearing. They include the claimant, the Department and, in most cases, an employer.

Postmark is the ink stamp the postal service puts on a letter indicating the date it began the process of delivering the letter.

Remand is the act of sending something back to a lower level for further action.

Reopen is to permit the introduction of new evidence by conducting another hearing.

Reverse is to disagree with the previously issued determination or decision.

Subpoena is an order requiring a person to testify in a hearing.

Subpoena duces tecum is an order requiring a person to produce documents, records, or other evidence described in the subpoena.

The record is all of the documents and testimony considered in reaching a decision.

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Addresses and Telephone Numbers of the
ARKANSAS APPEAL TRIBUNAL, ARKANSAS BOARD OF REVIEW,
AND ARKANSAS COURT OF APPEALS

ARKANSAS APPEAL TRIBUNAL
P.O. Box 8013
501 Woodlane Avenue, Suite 261-S
Little Rock, AR 72203

Telephone Numbers: (501) 682-1063
Inquiries: (501) 682-1063
Voice Mail for Responding to Notice of Telephone Hearing: (800) 637-6110
Fax: (501) 682-7734

ARKANSAS BOARD OF REVIEW
P.O. Box 8016
Little Rock, AR 72203

Telephone Numbers: (501) 683-4300
Fax: (501) 683-4310

ARKANSAS COURT OF APPEALS
625 Marshall Street
Little Rock, AR 72201

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