CHARLESTON – The state Supreme Court has ruled that WorkForce West Virginia is barred from collecting benefits prior to two years before the dates of a deputy's decisions in an unemployment benefits case.



Justice Menis Ketchum authored the majority opinion.


Larry Myers appeals the Feb. 25, 2014, order of Kanawha Circuit Court affirming the administrative decision of WorkForce West Virginia, that Myers was ineligible to receive unemployment compensation benefits for various periods between Nov. 29, 2008, and March 17, 2012, according to the May 13 opinion.


The circuit court directed that Myers pay back $39,713 in benefits he received from WorkForce for those periods.


"Upon review, this court affirms the conclusion that Myers was ineligible to receive unemployment compensation benefits," the opinion states. "Myers was ineligible for benefits because he was neither totally nor partially unemployed during the periods in question."


The court further conclude that the $39,713 was improperly calculated, as Myers contends, based on the statute of limitations pertaining to the overpayments in this case.


"Consequently, this court reverses that aspect of the case and remands this matter to the circuit court for a determination of the amount of Myers's repayment, consistent with this opinion," the opinion states.


Myers was a sales associate for Outdoor Express in its Falling Waters location and was paid bi-weekly on a commission basis, but only when his sales were finalized by Outdoor Express during the preceding two-week period.


Due to the seasonal nature of the business and downturns in the economy, sales associates like Myers would occasionally go for weeks without a sale and, without income, according to the suit.


With advice from the local unemployment office in Martinsburg, Outdoor Express issued low earnings reports to Myers for periods when Myers did not receive commission checks for sales of recreational vehicles and Myers file claims for, and received, unemployment compensation benefits for those periods.


On Nov. 13, 2012, and Nov. 16, 2012, the deputy commissioner issued decisions on each of Myers' 22 claims and in each claim, the deputy found that Myers was neither totally nor partially unemployed during the periods in question and was uneligible for unemployment compensation benefits.


Myers appealed the deputy's decision and a hearing was conducted before the administrative law judge. On Feb. 28, 2013, the administrative law judge affirmed the decisions of the deputy in all of the claims.


The administrative law judge's findings were affirmed by the Board of Review on May 15, 2013, and Myers appealed the board's decision.


On Feb. 25, 2014, Kanawha Circuit Court entered an order affirming the decision of the Board of Review. The circuit court determined that the overpayments of benefits to be repaid by Myers totaled $39,713. Myers then appealed the circuit court's decision.


"This case involves neither misrepresentation nor fraud," the opinion states. "Outdoor Express issued LERs to Myers, on the advice of the local unemployment office in Martinsburg for periods when Myers did not receive commission checks."


That advice was subsequently questioned by Workforce, according to the opinion.


"Although Myers failed to report his income on the claim forms, the principal error rests with the local office and continued for several years while Myers was receiving unemployment compensation benefits," the opinion states. "As the administrative law judge stated, 'It is incumbent upon the department to provide more clear and precise instructions to employers and employees that are affected by seasonal activities and who operate on a commission basis.'"


The State Supreme Court affirmed the circuit court's conclusion that Myers was ineligible to receive unemployment compensation benefits because he was neither totally nor partially unemployed during the periods in question.


"However, the $39,713.00 overpayment was improperly calculated and should be recalculated pursuant to W.Va. Code, 21A-10-21 1989," the opinion states. "Consequently, this court reverses that aspect of  the case and remands this matter to the circuit court for a determination of the amount of Myers’s repayment, i.e., WorkForce is barred from collecting benefits paid to Myers prior to two years before the dates of the deputy’s decisions on Nov. 13, 2012, and Nov. 16, 2012."


Myers was represented by Steven Brett Offutt of the Law Office of Brett Offutt.


The respondents were represented by Mary Blaine McLaughlin of WorkForce West Virginia's Legal Section; and Brian M. Peterson of Bowles Rice LLP.


W.Va. Supreme Court of Appeals case number: 14-0315

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