The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
July 12, 1999
THOMAS E. MOREFIELD, II, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
VS. ) 01-A-01-9807-CH-00385
)
O’BRIEN HEATING AND COOLING, ) Davidson Chancery
INC., HAZEL ALBERT, in her official ) No. 97-3854-I
capacity as acting COMMISSIONER )
OF EMPLOYMENT SECURITY, AIR )
CONDITIONING SERVICE, INC., and )
LIBERTY HEALTHCARE, )
)
Respondents/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
ROBERT ORR, JR.
210 Third Avenue, North
P. O Box 190683
Nashville, Tennessee 37219-0683
Attorney for Petitioner/Appellant
PAUL G. SUMMERS
Attorney General and Reporter
DOUGLAS EARL DIMOND
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0499
Attorney for Respondents/Appellees
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
In this case the question is whether an employee’s failure to return to
work after an on-the-job injury is misconduct that disqualifies him for unemployment
benefits. The Chancery Court of Davidson County affirmed the denial of benefits by
the Department of Employment Security’s Board of Review. We affirm.
I.
In the fall of 1996, Thomas Morefield injured his back on the job as an
air conditioner service technician. He continued to work with increasing pain until
January of 1997, when he left the job to get medical attention. In February of 1997,
Mr. Morefield’s doctor released him to return to work with a twenty-five pound lifting
restriction. Mr. Morefield, however, failed to report back to work. He thought he could
not do the heavy lifting involved, and he did not check with his employer to see if he
could be assigned to light duty, or to the office staff. There is proof in the record that
if he had reported for work, the employer would have provided Mr. Morefield with work
that he could perform.
Since Mr. Morefield did not return to work, his employer terminated him
on March 27, 1997. The reason stated in the termination letter was the failure to
return to work for thirty days after being released by the doctor.
Mr. Morefield applied for unemployment compensation, but the Board
of Review affirmed an Appeals Tribunal’s denial of benefits “under Tenn. Code Ann.
§ 50-7-303(a)(2)” (misconduct connected with the claimant’s work). The Chancery
Court of Davidson County affirmed the Board’s decision.
II.
Mr. Morefield does not dispute the facts nor the main points relied on by
the Board. He concedes that had he voluntarily quit his job he would have been
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disqualified from receiving benefits. Tenn. Code Ann. § 50-7-303(a)(1). He also
concedes that excessive absenteeism can be misconduct connected with his work
under Tenn. Code Ann. § 50-7-303(a)(2). See Wallace v. Stewart, 559 S.W.2d 647
(Tenn. 1977); Simmons v. Traughber, 791 S.W.2d 21 (Tenn. 1990); Simmons v.
Culpepper, 937 S.W.2d 938 (Tenn. App. 1996).
He argues, however, that the same cases hold that absences due to
illnesses and job injuries do not constitute misconduct under the statute. We agree.
But the Board found that his refusal to return to work after being released by his
doctor (albeit with lifting restrictions) was unjustified. The chancellor concurred and
made this finding of fact:
The court finds that petitioner was not absent from
work due to his job-related injury because, his doctor had
released him to return to light duty work and his employer
was prepared to make light duty work available to him.
Nevertheless, petitioner made a deliberate decision not to
contact his employer or offer himself for work between the
time he was released from his doctor on February 25,
1997 and March 27, 1997, the date he was terminated
from his employment.
Our duty is to determine if the Board’s “findings, inferences, conclusions,
or decisions are ‘[u]nsupported by evidence which is both substantial and material in
light of the entire record.’” Simmons v. Culpepper, 937 S.W.2d 938 at 943 (Tenn. App.
1996). See Tenn. Code Ann. § 50-7-304(i)(2)(E). We are of the opinion that the
Board’s conclusion and the chancellor’s finding are supported by substantial and
material evidence.
We affirm the judgment of the trial court and remand this cause to the
Chancery Court of Davidson County for any further proceedings necessary. Tax the
costs on appeal to the appellant.
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_____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
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