ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

CLA-CLIF NURSING & REHAB CENTER,

APPELLANT

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT AND LORRAINE WYNN,

APPELLEES

E01-45

NOVEMBER 14, 2001

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

NO. E01-45

AFFIRMED

The Employment Security Department found that the claimant, Lorraine Wynn, was entitled to unemployment insurance benefits. Appellant, CLA-CLIF Nursing & Rehab Center, through its owner and operator, Bill Clay, filed an appeal with the Arkansas Appeal Tribunal. A telephone hearing was scheduled for November 14, 2000. Clay was called out of town and arranged for his secretary to handle the telephone hearing. The secretary was late in calling to the Appeal Tribunal and did not participate in the hearing; therefore, Clay was not represented at the hearing. Clay then requested that the matter be reopened and that he be allowed to present evidence of the reasons for the termination of Wynn on the basis that he had good cause for failing to appear at the hearing. Following a telephone hearing, the Appeal Tribunal denied Clay's request, holding that he did not show good cause for failing to appear at the first hearing, and affirmed the Department's decision to award benefits. Clay appealed to the Board of Review, which affirmed the Appeal Tribunal's

decision that Clay had not shown good cause for not appearing at the first hearing.

Clay contends: (1) that he had good cause for failing to appear at the Appeal Tribunal hearing; therefore, the Tribunal should have reopened this matter and conducted an additional hearing; (2) that he was denied due process when the Appeal Tribunal conducted the hearing to consider reopening this matter because he was not represented by counsel, that he was unskilled in explaining the reasons he missed the scheduled hearing, and that the questions asked by the Appeal Tribunal at the reopening hearing were insufficient and inadequate. We find no merit to any of these arguments, and we affirm.

Clay's first argument is that he had good cause for failing to appear at the tribunal hearing. Arkansas Code Annotated section 11-10-524(d)(2) (Supp. 1999) provides that "[r]equests for reopening shall be made in writing and shall be granted by the tribunal only upon a showing of good cause for failing to appear at the initial tribunal hearing." On appeal, the findings of fact of the Board of Review are conclusive if supported by substantial evidence, which is relevant evidence that a reasonable mind might accept as adequate to support a conclusion; appellate review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it, and in making that determination, the evidence and all reasonable inferences deducible from it are reviewed in the light most favorable to the Board's findings. White v. Director, 54 Ark. App. 197, 924 S.W.2d 823 (1996). See also Brown v. Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996).

From the record, it appears that Clay received notice from the Appeal Tribunal informing him that the hearing would be held on November 14, 2000, at 9:30 a.m. Thenotice instructed him to contact the Appeal Tribunal at least a day in advance of the hearing and leave a number where he, or the party representing him, could be reached; Clay failed to do this. The notice also contained a statement that "[i]f the party fails to call the Tribunal as instructed or fails to be available to receive the call, the hearing officer will conduct the hearing without that party and make a decision without that party's testimony." Clay's secretary did not call in until 9:51 a.m., which was twenty-one minutes after the commencement of the scheduled hearing.

Clay's reasons for failing to attend the telephone hearing consist only of his statement that he was called out of town, that he thought the situation was "cut and dried," and he believed the situation could be handled by his secretary. Clay did not provide an explanation or reason why he had to go out of town. Furthermore, the only explanation of why the secretary did not call in time for the hearing, was that she just "let it slip by her." Based on the evidence presented, the Appeal Tribunal found, and the Board of Review agreed, that Clay had not demonstrated good cause that the hearing should be reopened. The lack of explanation, Clay's failure to comply with the notice's instruction to call the Appeal Tribunal to provide a number, and the secretary's failure to call in time to attend the hearing, viewed in the light most favorable to the Board's findings, is substantial evidence that Clay did not have good cause for failing to appear at the hearing. We hold that substantial evidence exists to affirm the decision of the Board of Review that Clay did not show good cause for his failure to appear.

Clay cites Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980), insupport of his argument that he should have been afforded an opportunity to appear before the Board of Review to explain the reasons for his failure to appear at the hearing. We do not find Paulino to be applicable to the case at bar. In Paulino, we reversed a decision of the Board of Review because it had refused an appellant the opportunity to explain why his untimely effort to appeal from the Appeal Tribunal to the Board of Review was due to circumstances that were beyond appellant's control. This is simply not the situation in the case at bar. Here, Clay, after failing to appear at the first hearing, requested that his case be reopened. The Appeal Tribunal, acting in accordance with Ark. Code Ann. § 11-10-524(d)(2) (Supp. 1999) conducted a hearing for the purpose of determining whether Clay's failure to attend the first hearing was for good cause. Clay attended that hearing and was afforded an opportunity to explain why his failure to attend the first hearing was due to circumstance beyond his control. From an adverse ruling of the Appeal Tribunal, Clay appealed to the Board of Review where his case was reviewed and affirmed. Clay was not also entitled to an evidentiary hearing before the Board of Review on the issue of whether his failure to attend the first Appeal Tribunal hearing was for good cause. Arkansas Employment Sec. Dep't v. Mellon, 322 Ark. 715, 910 S.W.2d 699 (1995).

Clay's second contention is that he was not afforded due process at the reopening hearing before the Appeal Tribunal because he was not represented by counsel and he was unskilled in explaining why he had missed the first hearing. From our review of the record of the proceedings before the Appeal Tribunal and the Board of Review, we do not discern anything that suggests that this issue was raised below. We do not consider arguments raisedfor the first time on appeal. Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984).

We hold that there is substantial evidence to support the finding of the Board of Review that Clay did not show good cause for his failure to appear at the Appeal Tribunal hearing, and we affirm.

Affirmed.

Jennings and Roaf, JJ., agree.