BEVERLY J. POWELL v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND KENTUCKY MEDICAL SERVICES FOUNDATION
Annotate this Case
Download PDF
RENDERED: March 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002789-MR
BEVERLY J. POWELL
v.
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 03-CI-90172
KENTUCKY UNEMPLOYMENT INSURANCE
COMMISSION AND KENTUCKY MEDICAL
SERVICES FOUNDATION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; MILLER, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
Beverly Powell has appealed from the Rowan
Circuit Court’s order affirming the Kentucky Unemployment
Insurance Commission’s decision to deny her request for
unemployment benefits due to misconduct.
1
Because we agree that
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 100(5)(b) of the Kentucky Constitution and
KRS 21.580.
substantial evidence supports the Commission’s findings and that
it correctly applied the law, we affirm.
Powell began working as a receptionist for Kentucky
Medical Services Foundation (hereinafter “KMSF”) in April 2002.
For several years before that, she had been working for the
predecessor company.
On August 26, 2002, Powell filed a request
for medical leave under the Family and Medical Leave Act,
attaching the necessary form from her healthcare provider.
Although she had not been an employee for the required twelve
months, Powell was granted leave from August 21 through
September 9, 2002, because she had accrued sick time sufficient
to cover the time period for which she would be out of the
office.
Powell then received an extension of leave time until
September 23, 2002.
Two days after the expiration of her
extended leave time, Powell verbally requested additional leave.
Charles Merritt, the Director of Human Resources for KMSF, sent
Powell the following letter the same day:
I received your verbal request for
additional Medical Leave given in the form
of a voice-mail left for Margaret Radford,
the Radiation Medicine Satellite Clinic
Administrator. Your request for additional
leave has been granted continent upon the
completion of the enclosed re-certification.
Please forward these forms to the healthcare
provider who completed the original
certification for your leave. You must
return the completed forms to me, at the
address listed below, no later than October
18, 2002 for the additional leave to be
-2-
granted. Please feel free to contact me at
the number listed below if you have any
questions.
Powell met with several representatives of KMSF on
October 9th to discuss an office complaint she had made, and at
that time she was reminded of the need to provide the recertification forms.
Powell disputed this, and later stated
that she was told not to return to work until the investigation
on her complaint had been completed.
The following day, Merritt
received a fax from Powell’s healthcare provider that extended
her medical leave until October 1st.
By letter dated October 10,
2002, Merritt informed Powell that the faxed note did not
satisfy the requirements of re-certification, and reminded her
that the re-certification forms he sent with the previous letter
were due October 18th.
Those forms would allow her absence from
work since September 24th to be considered medical leave.
According to her testimony, Powell forwarded the recertification forms to her healthcare provider, but discovered
on October 18th that they had not been completed.
The physician
who was to complete the forms was on vacation and did not
complete the forms until after the deadline had passed.
On October 21, 2002, Merritt sent Powell a letter
terminating her employment for unexcused absences.
At that
time, Merritt had not yet received the completed recertification forms.
Powell responded in a handwritten note
-3-
dated October 29, 2002, indicating that she was unaware of
KMSF’s policies and procedures, as she had never received a copy
of the personnel handbook.
Merritt responded to this
correspondence by letter dated November 4, 2002, stating that he
had received the healthcare provider re-certification forms on
October 31st.
He reminded her that on three occasions she had
been informed about the need to provide the re-certification
forms by October 18th and that she had never indicated that there
was any problem with this.
However, in reviewing the late re-
certification forms, Merritt noted that she was released to work
on October 1st, so that her absences between that date and
October 21st were considered unexcused.
Powell filed a claim for unemployment benefits
pursuant to KRS Chapter 341 on January 5, 2003.
In her
accompanying statements, Powell indicated that she had been
under severe physical and emotional distress due to a hostile
work environment since April 15, 2002, and that she was still
being treated for the condition.
Regarding her absence from
work, she indicated that she was discharged due to a
technicality in that forms were not timely sent in because of a
delay in her healthcare provider’s office.
Merritt filled out
the employer statement forms for KMSF, in which he indicated
that Powell had been discharged for failing to provide medical
-4-
re-certification pursuant to the FMLA, making her absences
unexcused.
On January 31, 2003, the Division of Unemployment
Insurance issued a notice of determination, ruling that Powell
was not entitled to benefits because she had been discharged for
misconduct connected with her work.
Powell appealed the
decision to a referee, who conducted an evidentiary hearing on
March 4, 2003.
One week later, Referee Debra Cook issued an
opinion affirming the earlier determination, reasoning that
based upon her factual findings, Powell was discharged for
misconduct pursuant to KRS 341.370(6) when she refused to obey
her employer’s reasonable instructions to return the recertification forms by October 18, 2002.
The referee also
relieved KMSF’s reserve account of charges.
Powell then sought
review from the Commission pursuant to KRS 341.430.
The
Commission adopted the referee’s findings of fact and
conclusions of law and affirmed her decision, determining that
the overall weight of the evidence supported the referee’s
findings of fact and that she correctly applied the law.
The
Commission also indicated that Powell had improperly attempted
to enter documentary evidence during the appeal, which was not
permitted and therefore not considered.
Powell next sought
judicial review pursuant to KRS 341.450 by filing a complaint in
Rowan Circuit Court.
Following briefing, the circuit court
-5-
entered an order on November 24, 2003, affirming the
Commission’s decision and holding that the findings of fact were
supported by substantial evidence and that the law was correctly
applied.
This appeal followed.
In her brief, Powell argues that the Commission’s
finding of misconduct was not supported by substantial evidence
and that the Commission misapplied the law.
On the other hand,
both the Commission and KMSF disagree with Powell’s assertions.
In Burch v. Taylor Drug Store, Inc.,2 this Court set
out the applicable standard of review for itself and for the
circuit court as follows:
Judicial review of the acts of an
administrative agency is concerned with the
question of arbitrariness.[] The findings
of fact of an administrative agency which
are supported by substantial evidence of
probative value must be accepted as binding
by the reviewing court.[] The court may not
substitute its opinion as to the weight of
the evidence given by the Commission.[]
Upon determining that the Commission’s
findings were supported by substantial
evidence, the court’s review is then limited
to determining whether the Commission
applied the correct rule of law.[]
With this standard in mind, we shall review the decision below.
Our decision in the present case turns on the
application of KRS 341.370, which provides in relevant part:
(1) A worker shall be disqualified from
receiving benefits for the duration of any
2
965 S.W.2d 830, 834 (Ky.App. 1998)(citations omitted).
-6-
period of unemployment with respect to
which:
(a) . . .
(b) He has been discharged for
misconduct or dishonesty connected with
his most recent work. . . .
KRS 341.370(6) defines “discharge for misconduct” as including,
but not limited to, “refusing to obey reasonable instructions.”
In previous opinions, this Court has observed that employers are
entitled to faithful and obedient service from their employees.3
In City of Lancaster v. Trumbo,4 the Court stated, “[w]here an
employee manifests an intent to disobey the reasonable
instructions of his employer, the denial of unemployment
benefits on the basis of misconduct is proper.”
On this same
subject, the Court in Kentucky Unemployment Insurance Commission
v. King5 cited to 76 Am.Jur.2d Unemployment Compensation § 52 for
the proposition that “‘an act of wanton or wilful disregard of
the employer’s interest, a deliberate violation of the
employer’s rules’ would support exclusion from benefits whereas
‘mere mistakes, inefficiency, [or] unsatisfactory conduct’ would
not.”
Finally, we recognize that although the employee has the
overall burden of proof and persuasion, the employer bears the
3
Shamrock Coal Company v. Taylor, 697 S.W.2d 952 (Ky.App. 1985); City of
Lancaster v. Trumbo, 660 S.W.2d 954 (Ky.App. 1983).
4
660 S.W.2d at 956.
5
657 S.W.2d 250, 251 (Ky.App. 1983)(emphasis in original).
-7-
burden of proof to establish misconduct, as “a misconduct
allegation is in the nature of an affirmative defense.”6
In the present case, Powell argues that the finding of
misconduct is not supported by substantial evidence.
disagree.
We
While it is true that Powell provided testimony to
the contrary, based upon our review of the record we must hold
that KMSF provided ample evidence to support the referee’s and
the Commission’s findings of fact.
Specifically, Merritt’s
letters to Powell as well as his testimony concerning the
circumstances leading to her discharge all support the findings
of fact.
Powell also argues that the Commission improperly
applied the law.
Again, we disagree.
It appears that the basis
of this argument is that the Commission did not place the burden
of proof on KMSF to establish misconduct.
This is incorrect
because not only did KMSF bear the burden of proof on this
issue, but was able to establish misconduct on Powell’s part.
The record is quite clear that KMSF provided documentary and
testimonial evidence to establish misconduct on Powell’s part
for her failure to timely provide the re-certification forms.
Merritt provided Powell with the necessary forms in
correspondence dated September 25th, and reinforced the
requirement in person on October 9th and by a subsequent letter
6
Shamrock Coal Company v. Taylor, 697 S.W.2d at 954.
-8-
on October 10th.
Powell had sufficient time to obtain the
completed re-certification forms.
Regardless of whether there
was a “mix-up” in her healthcare provider’s office, Powell still
had a duty to follow KMSF’s instructions, which were reasonable
under the circumstances of this case.
It was up to Powell to
establish a reason for her continued medical leave, over and
above her testimony that she did not feel like she was ready to
return to work.
That Powell had never received a copy of the
employee handbook is of no consequence because Merritt, among
others, specifically informed her of the need to timely provide
the re-certification forms.
Furthermore, KMSF did in actuality
review the re-certification forms once they were received after
Powell’s discharge.
But those forms only provided for leave
through October 1st, a date that had passed one month before the
forms were ever received.
Powell’s willful and wanton disregard
of KMSF’s instructions to provide the re-certification by a
specific date constituted misconduct as defined by KRS
341.370(6).
The Commission properly applied the law to the
facts of this case in determining that Powell was not eligible
to collect unemployment benefits due to her misconduct, and the
circuit court was correct in affirming that decision.
For the foregoing reasons, the opinion of the Rowan
Circuit Court is affirmed.
ALL CONCUR.
-9-
BRIEF FOR APPELLANT:
Beverly J. Powell, pro se
Morehead, KY
BRIEF FOR APPELLEE, KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
B. Amy O’Nan
Education Cabinet
Frankfort, KY
BRIEF FOR APPELLEE, KENTUCKY
MEDICAL SERVICES FOUNDATION:
James D. Allen
Lizbeth Ann Tully
Amy Johnson
Lexington, KY
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
