IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DOUGLAS S. DREWS, )
)

Appellant, )

)

v. ) C.A. Nl6A-05-013 AML

)

DIVISION OF UNEMPLOYMENT )
INSURANCE & UNEMPLOYMENT )
INSURANCE APPEAL BOARD, )
)

Appellees. )

Submitted: January 12, 2017
Decided: April l9, 2017

ORDER

On appeal from the Unemployment Insurance

Appeal Board: REVERSED AND REMANDED
l. This is one of tWo appeals Douglas S. DreWs has taken from two
separate Unemployment Insurance Appeal Board (the “Board”) decisions after
remand. The Board found that the claimant received a non-fraudulent
overpayment of unemployment benefits. The claimant argues the Division of
Unemployment Insurance (the “Division”) miscalculated the amount of benefits he
Was overpaid. The question before me is Whether the Board’s decision is
supported by substantial evidence and free from legal error. For the reasons that

folloW, and With profound reluctance in view of the very small amount in dispute, I

conclude the Board’s decision must be remanded for a second time so the Board
may specify how the overpayment Was calculated.

2. On December 18, 2013, a claims deputy determined DreWs received a
“non-fraudulent overpayment” in the amount of $296.00 for a two-Week period.l
DreWs timely appealed that decision on December 26, 2013.2 On January 21,
2014, an appeals referee held a hearing.3

3. On March l4, 2014, the appeals referee issued a decision, affirming
the claims deputy’s determination that DreWs Was overpaid by $296.00.4 Although
DreWs contended he Was overpaid $116.25 a Week based on his self-created hourly
rate, the referee determined Drews Was overpaid $l48.00 a Week for a total of
35296.00.5 Drews timely appealed the referee’s decision to the Board on March 24,
2014.6

4. The Board held a hearing on March 26, 2014.7 On May 15, 2015, the
Board affirmed the appeals referee’s decision, finding DreWs liable for the $296.00

overpayment.8 DreWs timely appealed the Board’s decision to this Court.9

 

lR. at l.

214 at 3.

3 1a at 8.

4 Id. at 23-25.
5 Id. at25.
614 at33.
71a ar42.
81a

91d. at48.

5. On August 13, 2015, another judge of this Court affirmed the Board’s
decision that Drews is liable to repay the overpayment of unemployment benefits
that he received, but reversed and remanded the case back to the Board to specify
how the $296.00 overpayment was calculated.10 The Court explained:

The Division calculated an overpayment of $148 per
week (totaling $296) and that amount was affirmed by
the Appeals Referee and adopted by the Board. Upon
review, the Division now acknowledges that the
overpayment calculation of $]_48 per week (totaling
5296) is mathematically incorrect The Division admits
that Appellant’s weekly wages ($321.43) minus the
amount of his permissible Weekly earnings ($165) equals
$156 which is $8 more than the weekly figure ($l48)
calculated by the Appeals Referee and adopted by the
Board. The Division maintains that it “mistyped the
figures into their internal computer system that calculates
overpayment amounts as 3312 instead of $321” and the
“transposition of figures resulted in the Division seeking
an overpayment of only 3148 per week for two weeks,
instead of the $156 per week . . . that is actually owed.”
Such information does not appear to have been presented
to the Appeals Referee or to the Board and, as a result, is
not included in the record below.ll

The Court further reasoned that it was unclear whether the appeals referee applied
l9 Del. C. § 3313(m) to the facts of the case.12 The Court concluded that because
the appeals referee’s decision did not specify how the $296.00 overpayment was

calculated, the Court was unable to determine whether the appeals referee’s

 

10 Id. at 67.
111¢1. at 66-67.
12 la at 67.

decision, adopted by the Board, was supported by substantial evidence and free
from legal error.l3

6. On remand, the Board held a meeting on March 23, 2016, wherein the
Board decided to remand the issue of recalculating the overpayment amount to an
appeals referee.14 The appeals referee held a hearing on April ll, 2016 and issued
a decision on April 13, 2016.15 The appeals referee concluded Drews “failed to
report any earnings for either the week ending November 2, 2013 or the week
ending November 9, 2013. . . . The amount due and owing was revised to correct a
rounding error, per 19 Del. C. § 3313(m), to $294.00 for the two weeks in question
or $147.()0 for each of the two weeks.“16 The appeals referee neither explained
how she determined $147.00 was the weekly overpayment, nor addressed the
Division’s conceded error to this Court during the first appeal.

7. On April 15, 2016, Drews appealed the appeals referee’s decision to
the Board, arguing he owes no more than $170.00.17 The Board held a hearing on
April 20, 2016.18 0n May 20, 2016, the Board adopted the referee’s decision,

concluding it was “satisfied that the Referee calculated the overpayment in

 

13 Id

141d. at112.
15 rd. at 86-88.
161¢1. at 87.
1114 at 110.
18 1a at 112.

compliance with 19 Del. C. § 3313(m) and finds no error in the determination
reached by the Appeals Referee.”19

8. On June 9, 2016, Drews again timely appealed the Board’s decision to
this Court.20 Although Drews admits he received an overpayment, he continues to
dispute the amount of that overpayment21 The Division maintains the only issue
on remand is whether the record supports the calculation of the overpayment
amount. The Division contends the Board’s decision adopting the appeals
referee’s determination “made it clear that the overpayment in this case was
calculated in accordance with 19 Del. C. § 3313(m),” and therefore the decision
should be affirmed.22

9. As in Drew’s other appeal,23 a rational being must wonder how the
State’s interests are advanced by the Division’s dogged pursuit of $124.00, which
is the total amount in dispute. This Court, however, is duty-bound to decide the

cases before it. Review of the Board’s decision on appeal is limited to whether the

Board’s findings were supported by substantial evidence and whether the decision

 

19 Id

20 Id. at 78. After a conflict arose for the judge who heard Drews’ first appeal, this appeal was
re-assigned. D.I. l().

21R.at79.

22 Division’s Answering Br. 3. The Board did not file an answering brief, asserting that the
“underlying case was decided on the merits” and “the Appellant raises only challenges to the
Board’s decision on the merits.” D.I. 9.

23 See C.A. No. N16A-03-001 AML.

is free from legal error.24 Substantial evidence is “relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.”25 Where the
Board adopts an appeals referee’s factual findings as its own, the Court will review
the appeals referee’s factual findings and conclusions of law.26 The Court will not
weigh evidence, determine questions of credibility, or make its own factual
findings and conclusions.27 The Board’s decision must be reversed and remanded
for further proceedings where there were no adequate findings of fact and
conclusions of law to support the decision.28

10. This appeal is limited to calculating the overpayment amount. 1
therefore only may consider whether the Board’s and appeals referee’s calculation
of overpayment benefits is supported by substantial evidence and free from legal
error.

11. On remand, neither the appeals referee’s decision nor the Board’s
decision specifies how the $294.00 amount was calculated. The April 13, 2016
appeals referee’s determination merely states: “Due to those amounts in earnings

for those two weeks, the Department determined Claimant was overpaid benefits

 

11 see thompson v, cam-uaw C.aa» await sy.»-., 25 A.sd m, tsi-32 met 2011); Dey.~,-her v.
Unemployment Ins. Appeal Bd., 2011 WL 70634?5, at *l (_Del. Super. Sept. 23_. 2011) (citing
O£ney v. Cooch, 425 A.2d 610, 614 (Del. 1981)) (defining substantial evidence as “evidence
from which the Board could fairly and reasonably reach its conclusion”).

25 Murphy & Landon, P.A. v. Perrzic, 121 A.3d 1215, 1221 (Del. 2015).

16 say v. Mw-phy Mar:ne .se,~vs., mc., 2002 WL 1288731, at *3 (Dei. super. June 3, 2002) (citing
Br)ug)'?mn v. Depr. QfLabor_. 300 A.2d 25, 26 (Del. Super. 1972)).

27 Thompson, 25 A.3d at '?82.

28 Bd. r)f!:`duc. v. Johns, 2002 WL 471175, at *2 (Del. Super. Mar. 27, 2002).

6

for those two weeks, The amount due and owing was revised to correct a rounding
error, per 19 Del. C. § 3313(m), to $294.00 for the two weeks in question or
S147.00 for each of the two weeks.”29 The Board’s decision, similarly lacking any
explanation as to how the amount was calculated, states: “This resulted in an
overpayment for those two weeks. The original amount of the overpayment was
calculated at $296 for two weeks. The amount was revised to correct a rounding
error, per 19 Del. C. § 3313(m), to $294 for the two weeks in question.”30

12. The Division failed to specify how the overpayment was calculated,
as so ordered in the Court’s August 13, 2015 decision. This particularly is
troubling given that the Division acknowledged to the Court that the original
overpayment calculation was “mathematically incorrect” (rounding error aside),
and the Court specifically remanded to allow the Board to explain how the
calculation was made. The Court therefore is unable to determine whether the
appeals referee’s decision or the Board’s decision is supported by substantial
evidence and free from legal error based on the present record.

For the foregoing reasons, the Unemployment Insurance Appeal Board’s
May 20, 2016 decision is REVERSED and REMANDED to the Board for further

proceedings consistent with this Decision. Perhaps, however, the Division may

 

29 R.a187.
30 Id. at 112.

wish to consider whether expending additional resources on this matter is
consistent with its mandate.

IT IS SO ORDERED.

 

Abiga l_ .`ljeGrow, Jud©

Original to Prothonotary

cc: Paige J. Schmittinger, Deputy Attorney General
Victoria W Counihan, Deputy Attorney General
Mr. Douglas S. Drews, pro se (via First Class Mail)

