O'Dell v. Adkins

• Docket Number: 24-ICA-426
• Decision Date: 11 June 2025
• Citation: O'Dell v. Adkins, 24-ICA-426 (W. Va. ICA Jun 11, 2025)
• Parties: JANA BROOKE O'DELL Petitioner Below, Petitioner v. SCOTT A. ADKINS, in his capacity as Acting Commissioner of WorkForce West Virginia, Respondent Below, Respondent and WORKFORCE WEST VIRGINIA BOARD OF REVIEW,
• Court: West Virginia Intermediate Court of Appeals

1

JANA BROOKE O'DELLPetitioner Below, Petitioner v. SCOTT A. ADKINS, in his capacity as ActingCommissioner of WorkForce West Virginia, Respondent Below, Respondent and WORKFORCE WEST VIRGINIA BOARD OF REVIEW, ^[1]Respondent Below, Respondent

No. 24-ICA-426

West Virginia Intermediate Court of Appeals

June 11, 2025

(Cir Ct. Kanawha Cnty. CaseNo. CC-20-2022-AA-28)

MEMORANDUM DECISION

PetitionerJana Brooke O'Dell appeals the Kanawha County Circuit Court's September 27, 2024, order, which affirmed the decision of WorkForce West Virginia Board of Review("BOR") and held that Ms. O'Dell was not eligible to receive Pandemic Unemployment Assistance ("PUA") because she was not prevented from working directly as a result of the COVID-19 pandemic.RespondentScott Adkins, Acting Commissioner of WorkForce West Virginia ("WorkForce"), filed a response.^[2] Ms. O'Dell filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4(2024).After considering the parties' arguments, the record on appeal, and the applicable law, this Court finds no substantial question of law and no prejudicial error.For these reasons, a memorandum decision affirming the circuit court's order but remanding for further consideration is appropriate under Rule 21 of the Rules of Appellate Procedure.

Ms O'Dell filed a claim seeking PUA benefits on April 24 2020, as a result of allegedly becoming unemployed as a direct result of the COVID-19 pandemic when she was unable to perform work for a company named Poll Makers, as a self-employed individual, based upon being required to provide childcare for her special needs child whose school closed due to the COVID-19 pandemic.

In 2019, Ms. O'Dell worked from home for a company that provided medical services.She eventually quit this employment because her work hours were reduced to two to three hours per week.As a result, Ms. O'Dell began to pursue employment with Poll Makers which conducted political surveys.

On April 23, 2020, the CEO of Poll Makers submitted a letter that states that Ms. O'Dell had completed training for Poll Makers' work from home contract labor position but had not yet logged in and worked for the company, though she was qualified.

The Family Nurse Practitioner that treats Ms. O'Dell's daughter, who was six years old at the time, submitted a letter on behalf of Ms. O'Dell.The letter states that Ms. O'Dell's daughter suffers from a language disorder, speech delays, oppositional defiant disorder sensory integration disorder, obsessive compulsive disorder, anxiety, and global developmental delays.The letter states that the child was unable to attend school due to COVID-19 and was further unable to attend daycare due to her diagnoses.The letter notes that it is the author's medical opinion that from March 2020 through the time of writing, the child required full-time supervision by an adult caregiver in the home with a knowledge and understanding of her disabilities and training/experience in managing her symptoms.

On February 3, 2021, the claims deputy determined that Ms. O'Dell was ineligible for PUA benefits because she did not have a defined start date for her employment with Poll Makers.The decision noted that it resulted in an overpayment, though no amount is mentioned.Ms. O'Dell appealed the deputy's decision.

On May 11, 2021, the Administrative Law Judge ("ALJ") held a hearing on Ms. O'Dell's appeal of the deputy's decision.Only two witnesses gave testimony: Ms. O'Dell and WorkForce's Employment Programs Associate, Alexander Naylor.Mr. Naylor testified that based on his research, the type of work Ms. O'Dell attempted to do for Poll Makers was not the type of work that one could rely on as their primary source of income.Mr. Naylor went on to testify that he contacted the CEO of Poll Makers, Amber Valdez, who informed him that working full-time for Poll Makers was not worth a person's time.Mr. Naylor also testified that competition for Poll Makers' assignments were "like trying to obtain popular concert tickets via Ticketmaster."He went on to state that Ms. O'Dell spent two to three hours a day for a week trying to get assignments from Poll Makers and then gave up.

Ms. O'Dell testified that her daughter received occupational and speech therapy at school and did well there until schools were closed.Once schools closed, it was impossible for her to work while the child was home due to her needs.She testified that in order to begin employment at Poll Makers, she had to complete training and enrollment, which she did.Once she completed those steps, she was sent an email with a link to an Excel document that she had to watch for potential assignments to be posted.She testified that she finished her classes and was certified to start polling on March 13, 2020, at which point she received a direct deposit onboarding form from Poll Makers as well as a W-9.She testified that she planned to start attempting work on March 16, 2020, but over the weekend she received a call from Kanawha County Schools regarding the schools closing due to the COVID-19 pandemic.She went on to testify that when she attempted to work, she would open the Excel document but as soon as the assignments would appear, they would be filled because so many people were calling to fill them.She testified that she attempted to obtain work for about a week before giving up.

Following the hearing, by decision mailed May 13, 2021, the ALJ found that Ms. O'Dell's

ability to monitor her computer in order to attempt to obtain work assignments was limited, to some degree, as a result of providing care to her significantly challenged child, however, the nature to the work which the claimant was performing was such that her inability to obtain work assignments would have been significantly limited regardless of whether the claimant was required to provide care for her child who was unable to attend school as a result of the COVID-19 pandemic.

The ALJ went on to specifically find that Ms. O'Dell "is not a covered individual under the CARES Act because she did not become unemployed directly as a result of being required to provide care for a child who is unable to attend school as a result of the COVID-19 pandemic."The ALJ also stated that any payments to Ms. O'Dell were overpayments, though no amount was specified.

Ms. O'Dell appealed the ALJ's decision to the BOR who, on May 23, 2022, mailed its decision adopting the factual findings of the ALJ and affirming the ALJ's decision.Ms. O'Dell then appealed the BOR's decision to the circuit court.By order entered September 27, 2024, the circuit court affirmed the BOR and held that the BOR did not err in concluding that Ms. O'Dell did not have a defined start date and Ms. O'Dell was not able to work due to the nature of the work of Poll Makers, not due to COVID-19.It is from the is order that Ms. O'Dell appeals.

Our standard of review in this matter is as follows:

"On appeal, [an appellate court] reviews the decisions of the circuit court under the same standard of judicial review that the lower court was required to apply to the decision of the administrative agency."Webb v. W.Va. Bd. of Med., 212 W.Va. 149, 155, 569 S.E.2d 225, 231(2002)(per curiam).

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.

Taylor v. Workforce W.Va., 249 W.Va. 381, 386, 895 S.E.2d 236, 241(Ct. App.2023)(alteration in original)(quotingSyl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395(1994)).

On appeal, Ms. O'Dell's assignments of error all concern a single issue: whether Ms. O'Dell was a "covered individual" pursuant to The CARES Act § 2102, 15 U.S.C. § 9021 such that she was eligible to receive PUA benefits.15 U.S.C. § 9021(a)(3) provides for payment of PUA benefits to "covered individuals," who must self-certify that they were able and available to work, except that the individual was unemployed, partially unemployed, or unable to work due to COVID-19.An individual can also be a "covered individual" under the CARES Act if the individual was scheduled to begin work and does not have a job or was unable to reach a job as a direct result of COVID-19.Seeid.

The question then becomes whether Ms. O'Dell was unable to work because of the COVID-19 pandemic, or whether she was unable to work due to the nature of the work of Poll Makers and her own decision to abandon her pursuit of work.The record clearly establishes that the struggles Ms. O'Dell encountered in trying to obtain work from Poll Makers would have been present regardless of the COVID-19 pandemic.In addition, Ms. O'Dell's own testimony indicates that she abandoned her pursuit of work after a week due to the competitive nature of the work and her frustrations with the same.While the Court acknowledges that this is a close call, we are, as always, guided by our standard of review.Based on the foregoing, we cannot say that the finding of the ALJ, adopted by the Board, that Ms. O'Dell "did not become unemployed directly as a result of being required to provide care for a child who is unable to attend school as a result of the COVID-19 pandemic" is clearly wrong.Accordingly, the BOR did not err in concluding that Ms. O'Dell was not a covered individual for the purpose of PUA eligibility.

However regarding the issue of the alleged overpayments, the Court first notes that the amount of overpayment is unclear from the record.Further, this Court notes that the BOR did not consider Governor Justice's...