Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-367

                                         APRIL TERM, 2011

 Kelly VanZile                                         }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Employment Security Board
                                                       }
                                                       }
 Department of Labor                                   }    DOCKET NO. 06-10-054-12



                          In the above-entitled cause, the Clerk will enter:

        Claimant appeals pro se from a decision of the Employment Security Board requiring her
to reimburse the Department of Labor for an overpayment of unemployment compensation
benefits. We reverse and remand.

         The following facts were found by the Administrative Law Judge and adopted by the
Board. Claimant filed an initial claim for unemployment compensation benefits in July 2009.
She received a determination from the Department showing a weekly benefit of $232 and a
claimant handbook setting forth certain “work search requirements.” Principally, these require a
claimant “to make at least three (3) job contacts for each week” of benefits claimed. The
handbook states that a claimant must “keep accurate records” of his or her work search efforts
and that “Work search forms are provided in the back of the handbook to assist you in keeping
track of your contacts. If you do not use these forms, you are required to keep records containing
all of the information outlined on our work search form.” The form in question is essentially a
spread sheet that includes space to indicate the name of each potential employer contacted, the
company name, address and telephone number, and the position applied for.

        Claimant did not use the form provided in the handbook to document her work search
efforts between early January 2010 and late April 2010. As a result, a claims adjudicator ordered
her to reimburse the Department $4,112 in benefits paid during that period. Claimant appealed,
and a hearing was held before an ALJ in July 2010. Prior to the hearing, claimant faxed to the
ALJ a list of the employers she had contacted since January 2010. The single-page list sets forth
the name of each company contacted, its location, and the outcome of the contact. Claimant’s
list identified 51 such contacts. At the hearing, claimant was asked whether she knew the
“weeks that these contacts were actually made.” Claimant responded, “I never wrote down the
actual dates,” although she did not deny knowing the dates.

        The ALJ concluded that claimant failed to comply with the Department’s work search
requirements in two respects. First, claimant’s list of employer contacts did not set forth the
information required by the Department handbook, including the date of the contact and the
position applied for. Second, the list of 51 contacts over the 25-week period in question was
well short of the 75 contacts (three per week) required. Accordingly, the ALJ ruled that claimant
had failed to fulfill a condition for the receipt of benefits and was required to repay the amounts
received.

       Claimant appealed to the Board, asserting that, in faxing her original list to the ALJ, a
second page containing the names of over 25 contacts had inadvertently failed to print. Claimant
submitted the second page to the Board, together with a spread sheet identifying the week of
each contact, the position applied for, the employer’s address and phone number, and the
outcome. At the hearing before the Board, claimant explained that she had assumed the ALJ had
received the second page, and that while she had not contemporaneously noted the specific day
of each contact she had kept a record of each week’s contacts.

        The Board issued a written decision in August 2010. The decision states in general terms
that the Board had reviewed the evidence taken before the ALJ and found it to be sufficient to
support the ALJ’s findings, which the Board adopted as its own. The decision further states that
the Board had reviewed the ALJ’s conclusions, found them to be factually supported, and
adopted them as its own. Accordingly, the Board sustained the ALJ’s ruling. This appeal
followed.

        As the ALJ observed in his decision, the Commissioner is expressly authorized by statute
to require that a claimant register at an employment office, “make such other efforts to secure
suitable work as the commissioner may reasonably direct,” and “supply proper evidence
thereof.” 21 V.S.A. § 1343(a)(3). A claimant who has received benefits “while any conditions
for the receipt of benefits” were unfulfilled is liable for repayment of the amounts received. Id. §
1347(a).

        Claimant does not challenge the legal basis of the Board’s decision to apply and enforce
the handbook requirements and order the reimbursement of benefits. She contends, however,
that the Board erred in failing to address the additional evidence that she submitted to the Board,
which, she maintains, satisfied those requirements. As this Court has recognized, the Board’s
longstanding policy is to decide appeals on the record evidence submitted to the ALJ, although it
may direct the ALJ to consider any new evidence offered by a party and necessary to a proper
disposition of the appeal. Piper v. Dep’t of Labor, 2011 VT 32, ¶15; Frye v. Dep’t of Emp’t Sec.,
134 Vt. 131, 133-4 (1976). The decision on whether to remand to the ALJ for the taking of
additional evidence is within the Board’s sound discretion. Lincoln v. Dep’t of Emp’t &
Training, 156 Vt. 316, 321 (1991).

        The difficulty here is that the Board’s decision gives no indication that it even considered
whether to remand to the ALJ to address the new evidence submitted by claimant. It may be, as
the Department argues on appeal, that the Board “acted within its discretion” in not remanding
because the circumstances suggest—in the Department’s view—that the second page of
employment contacts submitted by claimant was fabricated “after the fact to address the
deficiencies articulated in the ALJ’s decision,” or that the submissions were “belied” by her
testimony or were otherwise unreliable. There is no indication in the Board’s decision, however,
that it exercised its discretion on this basis, or any basis. Accordingly, we conclude that the
decision must be reversed and the matter remanded to the Board to address this deficiency.

          Reversed and remanded for further proceedings consistent with the views expressed
herein.


                                                 2
BY THE COURT:

_______________________________________
Paul L. Reiber, Chief Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Brian L. Burgess, Associate Justice




  3
