Buick v. Department of Employment Security

ORME, Judge

(concurring):

I fully concur in the main opinion. In so doing, however, I wish to note that this case, for me, marks the very outer limit of the deference this court is obliged to give the Board of Review under Utah Code Ann. § 35-4-10(i) (1987) and Grinnell v. Board of Review, 732 P.2d 113, 115 (Utah 1987).

I think the Board’s decision is plainly wrong. If Burnett’s toothache was not so serious as to require his obtaining professional services for its treatment, it could not have been so incapacitating as to render him unable to work. (Conversely, if his toothache really was that serious, it is difficult to see how it would have cleared up on its own in time for Burnett to go to work the very next day.) Against the background of Burnett’s earlier tardiness and at least one recent instance of missing work claiming to be ill when in fact he was not ill, I think the employer correctly concluded he had missed work for reasons other than toothache-induced incapacity. The employer had just cause to terminate Burnett for his unauthorized and mischar-acterized absence. That was the conclusion reached by the Department’s representative who first considered Burnett’s claim, as well as by Industrial Commission Chairman Hadley, who dissented from the Board’s affirmance of the appeal referee’s decision.

All of this having been said, however, I must concede that there is — just barely— evidence of some substance in the record to support the Board’s findings. In view of those findings, the Board’s decision is — just barely — within the realm of rationality.

While I obviously have little respect for the decision reached by the appeal referee in this case and affirmed by a divided Board of Review, I have considerable respect for the Legislature’s judgment that the business of unemployment compensation be all but exclusively vested in the Department of Employment Security, with this court’s review limited, as a practical matter, to righting the occasional gross abuse. This, however, is not a case where it can be fairly said that “no evidence of any substance” supports the Board’s findings. Nor is it a case where the Board’s decision is outside “the realm of reasonableness and rationality.” It follows that the decision is one entitled to affirmance, even though incorrect.