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MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. ERNEST N. SELLERS

APRIL 08, 1987

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION
v.
ERNEST N. SELLERS



BEFORE ROY NOBLE LEE, P.J., DAN LEE AND ANDERSON, JJ.

DAN LEE, JUSTICE, FOR THE COURT:

The Mississippi Employment Security Commission appeals the reversal by the Circuit Court of Jackson County of a Board of Review determination that Ernest N. Sellers received an overpayment of unemployment compensation benefits.

The Commission assigns three errors, but we find dispositive the Commission's third assigned error that the circuit court erroneously found no substantial evidence to support the Commission Review Board's decision based on the limited record before it. We therefore reverse and reinstate the Commission's order and do not reach the Commission's other assigned errors.

 FACTS

 The facts are basically not in dispute. Ernest Sellers filed an initial claim for regular unemployment compensation benefits on January 31, 1985, after he was terminated from employment with Southern Guard Service, Inc.

 The Commission initially determined that Sellers did not qualify for regular benefits because he had earned insufficient wages. This was a mistake. Because of this mistake, the Commission determined that Sellers was eligible to receive Federal Supplemental Compensation Benefits in the amount of $105 per week.

 Sellers received his weekly benefit for the weeks February 9, 1985 through March 30, 1985, for a total benefit of $669.

 After reevaluating Sellers' claim the Commission discovered he was indeed eligible for regular unemployment benefits of a maximum of $41 per week. However, because he was entitled to regular benefits, Sellers was actually ineligible for the Federal Supplemental Compensation benefits he had been receiving, since he had not exhausted the regular benefits.

 Sellers was entitled to a total of $91 in regular benefits for the weeks of February 23, 1985, through March 23, 1985. This amount was credited to the $669 incorrectly paid, leaving an overpayment to Sellers of $578.

 On June 5, 1985, the Commission's chief of benefits sent Sellers a letter which 1) informed Sellers that he had been overpaid $578, and 2) requested restitution.

 Sellers appealed this decision, and a hearing before an appeals referee was held on June 24, 1985. The referee heard testimony from Sellers and on June 26, 1985, rendered his findings upholding the determination of an overpayment only and did not mention the restitution aspect whatsoever. In that portion designated as opinion, the referee found:" The sole issue before the referee is whether or not claimant was overpaid. * * * The chief of benefits determination of an overpayment of $578, stated in the letter of June 5, 1985, is upheld. "

 Sellers sought further review of this decision before the Commission's Board of Review. On August 1, 1985, the Board of Review adopted the findings of the referee and affirmed that decision.

 On petition to the Circuit Court of Jackson County,

 the circuit court reversed and held that the Commission had no authority to obtain repayment in this case because the Commission had not shown that Sellers was overpaid either as a result of failure to disclose information ...


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