Love v. Director, Arkansas Employment Security Department

JOSEPHINE Linker Hart, Judge.

Carla Love appeals a decision of the Arkansas Board of Review (“Board”) that reversed the Appeal Tribunal’s award of unemployment insurance benefits and concluded that she was disqualified from receiving those benefits because of her misconduct in connection with her work. After her termination, appellant sought benefits and stated that she was in constant contact with Brentwood Industries, Inc. (“Brentwood”), her employer, regarding her hand injuries, that she was excused from work by her treating physician, and that she was informed by appellee that there was no longer any work available for her when both of her hands began bothering her. We affirm.

Appellant was employed by Brentwood from April 30, 1996, until her termination on April 26, 1999. Beginning June 1, 1997, Brentwood’s attendance policy, a copy of which appellant acknowledged receiving, provided that if an employee accumulated 6.5 occurrences¹, then he was given a written warning; if he incurred 6.5 additional occurrences in the next six-month period, then he was placed on probation and monitored during the following year; and if he received three more occurrences within six months of the monitoring year, then the employee was subject to termination.

While employed by Brentwood, appellant suffered from work-related carpal tunnel syndrome for which she received uncontro-verted workers’ compensation benefits, including medical expenses for her October 7, 1998, surgery to her right wrist. Appellant returned to work the following day and was later allowed, under her physician’s orders, to perform some light-duty work, including work that involved writing. During the first several days after she returned to work, appellant mainly sat in the conference room because the medications she took apparently prevented her from working. Thereafter, she was provided light-duty work — such as filling glue bottles with her left hand, picking up clothes pins, taking off clothes pins, and some cleaning — but she complained that she was unable to perform those functions. In addition, Brent-wood gave her clerical assignments, and during her last week at work, she was cleaning the break room, which included cleaning table-tops and a refrigerator with a wet rag, and removing trash from the parking lot.

Despite these offerings of light-duty work, appellant was excessively absent from work. Specifically, she was absent the following days: on the 19th and part of the 26th of August, 1998; on the 11th, 19th, and 26th of September, 1998; on the 6th, 19th, and 26th through 28th of October, 1998; on the 3rd, 8th, 9th, 28th, 30th and 31st of December, 1998; on the 4th through 30th of January, 1999; on the 1st through 3rd, and part of the 8th of February, 1999; and on the 6th and 19th of April, 1999. Despite her numerous absences, appellant offered only one note from her doctor that plainly excused her from work, but the note only excused her from work for two weeks.

The Board noted in its decision that appellant “acknowledged in her testimony that she was aware the employer required medical substantiation of the need to miss work and of her failure to provide such substantiation.” In particular, the Board found that appellant was reminded

that her employer did not have medical documentation substantiating her need to be off work, although [a] . . . letter written in December 1998 was apparently written after the claimant had obtained [the] . . . excuse for two of the weeks of work she missed in December but before the employer’s personnel manager learned of that. Even after receiving the December letter, [appellant] . . . missed most of January 1999, and the first medical statement she provided was dated mid-month and was not an excuse from work but a restatement of her ability to perform light duty work. It was [appellant’s] . . . responsibility to provide medical documentation needed to support her time off work.

Finally, despite receiving a written warning and a three-day suspension for excessive absences in December, 1998, the Board found that appellant admitted she was absent from work all day on April 19, 1999, because of vehicle problems notwithstanding the fact that her vehicle was repaired mid-way through her shift. The Board, accordingly, concluded that appellant’s failure to provide timely medical documentation supporting the overwhelming majority of her absences and her absence on April 19 constituted misconduct that justified a denial of unemployment compensation benefits pursuant to Ark. Code Ann. § 11-10-514 (Repl. 1996). From that decision, comes this appeal.

As we recently stated in Barb’s 3-D Demo Serv. v. Director, 69 Ark. App. 350, 354, 13 S.W.3d 206, 208 (2000) (citations omitted), our scope of appellate review in cases such as this is limited:

On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.

The evidence when viewed through this narrow scope of review demonstrates that appellant knew of Brentwood’s attendance policy, knew that she was required to provide medical documentation to substantiate her absences, and failed to provide the requisite information to Brentwood. The statutory authority on which the Board relied is Ark. Code Ann. § ll-10-514(a), which provides that “an individual shall be disqualified for benefits if he was discharged from his last work for misconduct in connection with the work.” The seminal decision concerning “misconduct” as used in this statute is Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612, 614 (1981), where we announced the following definition of the term:

[MJisconduct involves: (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer.

To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvert-encies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.

See also Niece v. Director, 67 Ark. App. 109, 112, 992 S.W.2d 169, 171 (1999).

In the case at bar, we conclude that Brentwood had a legitimate interest in information concerning when and if injured employees were excused from work by their treating physicians. Certainly sufch information was needed to properly plan for labor requirements. The intentional or deliberate failure to furnish such information was a willful disregard of the employer’s interest and of the standards of behavior that it had a right to expect of its employees. There was no substantial evidence in this case to support a finding that the failure to furnish this information was not intentional or deliberate. The decision of the Board of Review is, therefore, affirmed.

Affirmed.

Robbins, C.J., and Jennings, Crabtree, and Meads, JJ., agree. GRIFFEN, J., dissents.

1 One tardiness equaled one-half occurrence; and one day’s absence equaled one occurrence.