      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


TAMRA SCOTT,                              :
                                          :
             Appellant,                   :    C.A. No. K16A-04-002 JJC
                                          :    In and For Kent County
                 v.                       :
                                          :
DIVISION OF UNEMPLOYMENT                  :
INSURANCE                                 :
                                          :
                &                         :
                                          :
UNEMPLOYMENT INSURANCE                    :
APPEALS BOARD,                            :
                                          :
             Appellees.                   :

                                      ORDER

                           Submitted: September 6, 2016
                            Decided: November 4, 2016

      On this 4th day of November 2016, having considered Appellant Tamra
Scott’s (hereinafter “Ms. Scott’s”) appeal, it appears that:
      1. Ms. Scott appeals a decision of the Unemployment Insurance Appeal
Board (hereinafter “the Board”) that she was liable to the Division of
Unemployment Insurance (hereinafter “the Division”) for recoupment of
overpayments. Since this matter involves an appeal of an administrative agency’s
decision, the Court is confined to a review of the facts contained in the record, and
those facts are referenced herein.
      2. From May 11, 2015 through May 22, 2015, Ms. Scott failed to report her
earnings to the Unemployment Office, and instead, she collected unemployment
benefits while she was employed at Little Kids Swagg Day Care. For two weeks,
she simultaneously received pay from the daycare center and unemployment
benefits. On September 23, 2015, the Division issued a disqualification decision
on the basis of fraud because Ms. Scott failed to report her earnings from May 11,
2015 through May 22, 2015. When the Division disqualifies an applicant due to
fraud, the person disqualified cannot collect any benefits for a full year “beginning
with the date on which the first false statement, false representation, or failure to
disclose a material fact occurred.”1 Therefore, upon disqualification, Ms. Scott was
ineligible for unemployment benefits from May 16, 2015, the first date she failed
to report her earnings, through May 14, 2016. The disqualification, despite not
being issued until September 23, 2015, applied retroactively to May 16, 2015
pursuant to Delaware law.2 When Ms. Scott failed to file a timely appeal of the
disqualification determination, it became final and unreviewable on October 3,
2015.
          3. Following the disqualification determination becoming final, the Division
initiated an administrative proceeding to establish the amount of overpayments.
The Division determined that Ms. Scott owed $2,366 in overpayments for the
benefits paid to her from May 16, 2015 through August 15, 2015. When Ms. Scott
received notice that she owed $2,366, she appealed the overpayment determination
to an Appeals Referee. The Appeals Referee upheld the overpayment
determination and the Board affirmed.
          4. Ms. Scott then filed an appeal to this Court. Ms. Scott argues that she did
not receive a hearing before the Board and that there were inconsistencies in what
she was told by Division employees. Accordingly, Ms. Scott argues that she need
not repay the full $2,366. Instead, she maintains she need only repay the amount of

1
    19 Del. C. § 3314(6).
2
    Id.

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benefits she collected while simultaneously working at the daycare center in the
amount of $338.
          5. Ms. Scott is entitled to appeal the Board’s decision to this Court pursuant
to Section 3323(a) of Title 19 of the Delaware Code. An appeal from an
administrative board’s final order to this Court is confined to a determination of
whether the Board’s decision is supported by substantial evidence and is free from
legal error.3 Substantial evidence equates to “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 4 Substantial
evidence is “more than a scintilla but less than a preponderance.” 5 On review, “the
court is not authorized to make its own factual findings, assess credibility of
witnesses or weigh the evidence.” 6 Furthermore, “[i]n reviewing the record for
substantial evidence, the Court will consider the record in the light most favorable
to the party prevailing below.”7
          6. On appeal, Ms. Scott argues that she did not have a hearing before the
Board on the overpayment decision and that there are inconsistencies as to what
she was told by the Division. Ms. Scott, in her Opening Brief and during the
hearing before the Appeals Referee, cites a misunderstanding regarding the date on
which she filed her appeal. This issue is moot, however, since her appeal to the



3
 E.g., Unemployment Ins. Appeal Bd. Dept. of Labor v. Duncan, 337 A.2d 308, 308 (Del. 1975);
Thompson v. Christiana Care Health System, 25 A.3d 778, 781—72 (Del. 2011).
4
 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)).
5
    Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).
6
    Sokoloff v. Bd. Of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. 2010).
7
  Pochvatilla v. US Postal Service, 1997 WL 524062, at *2 (Del. Super. 1997); see also
Thompson, 25 A.3d at 782.

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Appeals Referee regarding the amount of the overpayment due was determined to
be timely.
          7. Additionally, Ms. Scott argues that she is not responsible for repaying
$2,366, and instead, believes she is only responsible for the amount she collected
during the two weeks she was simultaneously working and collecting benefits. She
alleges that because a Division employee told her that this limited repayment
would be the only repercussion of her fraudulent reporting, she did not appeal the
original disqualification determination. Ms. Scott further argues that she was
denied an evidentiary hearing before the Board. Rather than holding a hearing, the
Board decided the appeal based on the record of the Appeals Referee. Ms. Scott
argues that an appeal on the record to the Board is insufficient.
          8. While Ms. Scott argues in her Opening Brief that a Division employee
told her she would only be required to repay the amount she collected while
working at the daycare center, in another letter included as an exhibit with her
Opening Brief, she mentions that she was told she would be disqualified from
receiving benefits for a full year. Furthermore, contrary to this allegedly erroneous
advice, the written decision issued by the Division on September 23, 2015, clearly
provided

          [i]t is decided that the claimant knowingly failed to report her re-
          employment, earnings and subsequent separation from the job in order
          to obtain benefits to which she would not otherwise be entitled. The
          claimant is disqualified from the receipt of benefits for the one year
          period beginning week ending 5/16/15. . .. You are disqualified for
          receipt of benefits, pursuant to Title 19, section 3314(6), and also for
          fraud, effective with or for week ending 05/16/2015 until week ending
          05/14/2016.8



8
    R. at 32.

                                             4
The same written decision also referenced overpayments. It stated “[a]ny person
who has received any sum as benefits under this Chapter to which it is finally
determined that he was not entitled, shall be liable to repay said overpayment to the
Department for the Unemployment Compensation Fund . . ..”9 Furthermore, the
decision included notice of Ms. Scott’s appeal rights, stating the decision regarding
the disqualification would become final on October 3, 2015, if not appealed. She
did not appeal that decision, and it accordingly became final.
          9. Ms. Scott’s argument that a Division employee informed her she would
only be required to pay back two weeks of benefits based on the disqualification
decision is not availing. The law regarding repayment of overpayments is clear.
Under Delaware law, she is required to pay back all of the benefits she received
during the year she was disqualified.           When Delaware courts have examined
allegations that Division employees provided misinformation to claimants directly
contrary to clear law and written instructions issued by the Division, the courts
have consistently rejected those arguments. 10 Therefore, even if a Division
employee had misinformed Ms. Scott regarding the consequences of her
disqualification, the written decision would control. Moreover, given Ms. Scott’s
separately contradicting admissions, the Court cannot conclude that she was in fact
misinformed.
          10. Ms. Scott next argues that she was told she would receive a hearing
9
    Id.
10
   See Hampton v. Unemployment Insurance Appeal Board, 2016 WL 5867441, at *3 (Del.
Super. Oct. 7, 2016) (requiring the person claiming unemployment benefits to repay the amount
of benefits he collected despite being misadvised by a Division employee); Morrison v.
Unemployment Insurance Appeal Board, 2013 WL 5786417, at *3 (Del. Super. October 18,
2013) (stating that when Board requirements are clearly available, an argument that claimant was
improperly advised by Division employee “is not a valid excuse for failing” to adhere to those
requirements); Spicer v. Spicer Unlimited, 2005 WL 914469, at *2 (Del. Super. April 21, 2005)
(stating that the claimant’s ignorance as to the law regarding unemployment benefits was not an
excuse for failing to follow the Board’s regulations).

                                               5
before the Board to determine the amount of the recoupment, and because one was
not provided, the decision must be overturned. However, pursuant to Section
3320(a) of Title 19 of the Delaware Code, “the Unemployment Insurance Appeal
Board . . . may . . . affirm, modify, or reverse any decision of an appeal tribunal on
the basis of the evidence previously submitted to the appeal tribunal . . ..”11
Accordingly, the Board may decide an appeal on the record established by the
Appeals Referee. Delaware law does not require the Board to hold an evidentiary
hearing on appeal. The Board affirmed the Appeals Referee after reviewing the
evidence submitted at the initial hearing. From this material, the Board made the
decision to affirm the overpayment determination. The Board’s determination is
supported by substantial evidence and is free from legal error.
          11. Ms. Scott does not dispute the fact that she received these payments.
Furthermore, she cites no evidence of record below that the overpayment
calculation is incorrect. Accordingly, there is no basis for this Court to overturn the
Board’s decision.
          WHEREFORE, for the reasons cited herein, Ms. Scott’s appeal is DENIED.
The decision of the Unemployment Insurance Appeals Board is accordingly
AFFIRMED.
          IT IS SO ORDERED
                                                       /s/Jeffrey J Clark
                                                               Judge




11
     19 Del. C. § 3320(a).

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