Johnes v. Div. of Emp't Sec.
| Decision Date | 23 May 2023 |
| Docket Number | WD85570 |
| Parties | TIMOTHY W. JOHNES, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from The Labor and Industrial Relations Commission
Before Gary D. Witt, Chief Judge, Presiding, Mark D. Pfeiffer Judge, Thomas N. Chapman, Judge
Timothy W. Johnes ("Johnes") appeals the decision of the Labor and Industrial Relations Commission ("Commission") denying his appeal of prior decisions finding that Johnes had been improperly paid $4,200 in Federal Pandemic Unemployment Compensation ("FPUC") and $4,480 in State employment benefits because Johnes was disqualified from receiving benefits in that he was unavailable for work during the relevant period. Finding insufficient evidence in the whole record to warrant the Commission's decision, we reverse and remand for the Commission to hear Johnes's claim on the merits.
The facts essentially are not at issue in this case, and the procedural history is quite complicated and tortured. Johnes was laid off by his employer, Genesis Environmental Solutions, Inc. ("Genesis"), on December 27, 2020. Coincidentally, the day before he was laid off, Johnes was injured at work; he cut his face and received treatment for his face and some physical therapy for his shoulder pursuant to the Workers Compensation Law. During this time, Johnes was cleared to return to work; Genesis did not contest his claim for unemployment benefits, and a representative of Genesis and its workers compensation insurer later submitted a letter to the Division of Employment Security ("Division") confirming that Johnes "was not paid any temporary total disability benefits under Workers' Compensation while he was off work or while he was receiving unemployment benefits. "Nevertheless, the Division determined that Johnes was ineligible for benefits from "12/27/2020 to 09/09/9999" because he was "not available for work." The reason listed was because "The claimant has an open worker's compensation claim." (Emphasis added).
Johnes appealed, and the Division's Appeals Tribunal sent Johnes two separate notices for telephone hearing. The notices distinctly formatted, appeared nearly identical; they both provided for hearings on Friday, November 12, 2021, with Referee Austin Fullerton, and one stated the issue for the hearing was "288.380, RSMo: Is the claimant overpaid benefits because the claimant was paid benefits during a period of disqualification?" The other stated the issue for the hearing was "288.380, RSMo: Is the claimant overpaid benefits?" Johnes believed that he had been sent two notices for the same hearing, apparently not noticing that one hearing was at 9:00 a.m., and the other was for 10:00 a.m. Johnes called in at 10:00 a.m., and spoke with the Referee who questioned him solely about the amount he had received in FPUC benefits. During this hearing, Johnes asked the Referee, Both the hearing set for 9 a.m. and the hearing set for 10 a.m. on that day were before Referee Fullerton, however, Referee Fullerton would not hear or consider Johnes's testimony on why he was not ineligible for benefits, stating "These hearing on the overpayments are pretty simple. We just need to determine whether or not you received the payments. "The following exchange occurred regarding the two separate hearings:
On November 16, 2021, Johnes was mailed another Notice of Telephone Hearing, scheduling a hearing for Wednesday, December 1, 2021. The issue for this hearing is stated as, "288.040.1(2), RSMo: Was the claimant able to work, available for work and, if required, actively and earnestly seeking work?" Despite the Division having scheduled another hearing, Johnes's appeal was dismissed prior to the scheduled hearing, on November 22, 2021, because he "did not participate in the hearing to pursue this appeal." Referee Amanda Purvis reportedly conducted "a review of the entire record," which included Referee Fullerton's records.
On December 1, 2021, the date of the rescheduled hearing, Johnes attempted several times to call in for the hearing, but "[o]n each attempt [Johnes] received a recording telling [him] the pin number was not recognized" presumably because Referee Purvis dismissed his appeal the week prior to the scheduled hearing. Johnes notified the Division, and was told this would be noted in his account and he would receive an opportunity to reschedule; on December 31, 2021, not having been contacted to reschedule as promised, Johnes wrote a letter to the Division documenting his trouble accessing the telephone hearing system and requesting another hearing. Meanwhile, on December 27, 2021, the Appeals Tribunal issued an order again dismissing Johnes's appeal for his failure to attend the December 1 hearing.[1]
Another hearing was scheduled for January 3, 2022, but Johnes was late calling for that hearing because it was his first day on his new job, and he could not get away in time to call in; when he called in ten minutes late, his pin number was invalid. Johnes wrote a letter to the Division explaining this on January 3. Johnes's appeal was dismissed on January 7, 2022, for failure to appear at the hearing. However, another hearing was scheduled for March 15, 2022.[2] On March 15, Johnes represents to this Court that he was again unable to access the telephone hearing system with his PIN number.[3] Despite Johnes having immediately called and reported his trouble accessing his hearing to the Missouri Department of Labor, on March 15, 2022, Johnes's appeal was once again dismissed for failure to participate in his telephone hearing. Johnes timely appealed the decision of the Commission, and the Commission affirmed the decision of the Appeals Tribunal in an order dated June 7, 2022. Johnes's notice of appeal was lost internally within the Division, although Johnes sent his notice to the address indicated. The Division ultimately forwarded the Notice of Appeal to the Commission on July 18, 2022.
The decision of the Commission may be modified, reversed, remanded for a rehearing, or set aside by this Court if: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there is not sufficient evidence in the whole record to warrant the making of the award. Section 288.210.[4] In determining whether sufficient, competent evidence supports the award, or unless the award is "contrary to the overwhelming weight of the evidence," we do not review the evidence in the light most favorable to the award; rather, we "objectively review the entire record, including evidence and inferences drawn therefrom that are contrary to, or inconsistent with, the Commission's award." Johnson v. Div. of Emp't Sec., 318 S.W.3d 797, 800 (Mo. App. W.D. 2010); Vaughn v. Mo. CVS Pharmacy, LLC, 635 S.W.3d 378, 381 (Mo. App. E.D. 2021); Reed v. Div. of Emp't Sec., 469 S.W.3d 853, 855 (Mo. App. W.D. 2015).
When one of the issues is whether the Commission erred in refusing to set aside a dismissal due to the claimant's failure to show good cause for missing a telephone hearing, we must determine whether the Commission abused its discretion in so refusing. Stevenson v. Div. of Emp't Sec., 359 S.W.3d 91, 93 (Mo. App. W.D. 2011). "Abuse of discretion is shown where the outcome is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (internal quotation omitted). "The employment security law is to be liberally construed to accomplish its purpose to promote employment security. . . by providing for the payment of compensation to individuals in respect to their unemployment. "Taylor v. Div. of Emp't Sec., 488 S.W.3d 251, 254 (Mo. App. W.D. 2016); Section 288.020.2.
The Division argues that Johnes's appeal should be dismissed because his amended pro se brief does not comply with Rule 84.04.[5] Johnes's first brief filed with this Court was struck for noncompliance with Rule 84.04, and he filed an amended brief. "Rule 84.04 specifies the required contents of a brief on appeal." Bey v Precythe, 611 S.W.3d 599, 602 (Mo. App. W.D. 2020). "Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Id. (quoting Hiner v. Hiner, 573 S.W.3d 732, 734 (Mo. App. W.D. 2019)). "Rule 84.04 is not merely a rule of technicalities. Instead, it...
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