Karen D. Brewer v. Director, Employment Security Department and Windsor Door, Inc.

e01-164

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

E01-164

March 13, 2002

KAREN D. BREWER AN APPEAL FROM ARKANSAS

APPELLANT BOARD OF REVIEW

[01-AT-03759]

V.

DIRECTOR EMPLOYMENT

SECURITY DEPARTMENT and

WINDSOR DOOR, INC.

APPELLEES AFFIRMED

Karen Brewer appeals a Board of Review decision that denied her employment benefits based on a finding that Brewer voluntarily left her employment in relation to an on-the-job injury, but without making a reasonable attempt to preserve her job rights. She contends that substantial evidence did not exist to support the Board's decision. We hold that appellant failed to make a reasonable effort to preserve her job rights. Consequently, we affirm.

Appellant began working for appellee Windsor Door, Inc., in September 1998. She sustained a compensable injury to her right arm on May 27, 1999, which resulted in a diagnosis of right lateral epicondylitis.1 She was referred to the Arkansas Center for Surgeryof the Hand and Upper Extremity, and in a physician's report dated September 1, 1999, Dr. Michael Moore directed her to continuously wear a wrist splint and a Froimson band. The record indicates that appellant next visited Dr. Moore on October 20, 1999. In a letter to Dr. Scott Carle, Dr. Moore stated that he reviewed a videotape of appellant2 performing her job on October 7, 1999, and that the video did not depict appellant performing any significant gripping or lifting using her arm. The doctor released appellant to regular work activity and advised her to wear the wrist band as needed. Next, in a letter to Dr. Carle dated February 14, 2000, Dr. Moore stated that he believed appellant would benefit from a right lateral epicondylectomy and extensor carpal radialis brevis release. He also indicated that appellant would be scheduled to undergo a right lateral epicondylectomy in the near future.

Throughout her medical treatment with Dr. Moore, appellant continued to work for appellee. However, she eventually left her employment with appellee on October 23, 2000, due to her belief that appellee failed to provide suitable light duty work within her medical restrictions. Appellant testified that she told her supervisor and group leader that the physical problems on the job were too much of a strain on her arm. She also testified that she talked with Dennis Hendrix, the plant manager, at one time about the situation with her arm andthe fact that she was still doing lifting. Appellant testified that Hendrix told her he would get back with her, but that he never did.

Barbara Carter, the human resources manager for appellee, testified that she did not have a clue as to why appellant left her job. Carter further testified that appellant never contacted her prior to October 23, 2000, about needing to go back to some sort of light duty. She relayed that to her knowledge, "[appellant] never approached either her supervisors or me about the work bothering her or that she couldn't perform." In addition, Dennis Hendrix, plant manager, testified that in January 2000, he initiated a conversation with appellant as he toured the facility. When Hendrix commented about a wrap or brace that appellant had on her arm, appellant told Hendrix that "what she did out here might aggravate the problem."

At the conclusion of the hearing, the hearing officer found that although appellant left work in connection with her compensable injury, appellant did not make reasonable efforts to preserve her job. In his reasoning and conclusions, the hearing officer stated as follows:

[T]he claimant quit for unknown reasons. The evidence suggests that management knowingly placed claimant in a work environment that continued to aggravate her condition. The claimant discussed her situation once several months before she resigned. However, she failed to inquire about any light-duty jobs and failed to follow up her discussion with Hendrix afterward. . . the claimant did nothing to prevent any perceived mistreatment from continuing. The evidence also suggests that another factor that led the claimant to quit was her medical condition. It was evident that the claimant was suffering from her condition, but the claimant failed to take appropriate steps to alleviate her situation. The claimant could have approached Hendrix again or her union representative regarding finding a non-lifting position due to her condition. The claimant failed to discuss retaining her job given that she failed to notify management of her decision to quit. . . In this case, the claimant did not inquire about other job assignments.

From the record and testimony, the Appeal Tribunal affirmed the hearing officer'sdetermination. The Board of Review then affirmed the Appeal Tribunal. In rendering its decision the Board found as follows:

[T]he evidence indicates that the claimant last spoke to a member of management about her arm ten months before she quit, and that that brief conversation was not detailed, nor did the client initiate it. Further, the evidence fails to establish that the claimant pursued avenues available to her to attempt to resolve her problems, such as going to the vice president of management or to a union representative. Part of the argument in the claimant's behalf is to the effect that "by law," the knowledge of information in some documents in issue was imputed to the employer. However, there is a lack of evidence that the claimant was aware of any such (alleged) legal imputation, but even if she had been, the (alleged) imputations in this case would not have relieved the claimant from making attempts to preserve job rights by making the employer aware that the circumstances at work were not adequately facilitating her. Not speaking to a member of management about her problem during the last ten months of employment does not evidence a good faith effort.

This appeal followed.

Analysis

Findings of the Board are conclusive when we determine that the findings are supported by substantial evidence, i.e., evidence that reasonable minds might accept as adequately supporting the Board's decision. See Perdrix-Wang v. Director Emp. Sec. Dep't, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Upon appellate review, all evidence, as well as reasonable inferences, is viewed in a light most favorable to the findings of the Board. See id. We will not substitute our opinion for that of the Board. Thus, even when evidence exists that would support a different conclusion, our review is limited to determining whether the Board could have reasonably reached its conclusion based on the evidence presented to the Board. See id. However, reversal is required when we conclude that the Board's decision is not supported by substantial evidence. See Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996).

An individual is disqualified from receiving unemployment benefits when the Board determines that the individual voluntarily left her employment and without good cause connected to the work. See Ark. Code Ann. § 11-10-513 (Supp. 2001). However, Arkansas Code Annotated section 11-10-513(b) provides an exception that reads as follows:

No individual shall be disqualified under this section if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification or if, after making reasonable efforts to preserve job rights, he left his last work because of illness, injury, pregnancy, or other disability.

We reviewed the above exception in Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App. 1980). The claimant, Graham, suffered from asthma and bronchitis, and his treating physician recommended that he transfer to an area that did not expose him to an extensive amount of dirt and dust. Pursuant to the recommendation, Graham's employer assigned him to another area; however, Graham continued to experience difficulty. After he was told that he could return to his original job, Graham resigned. Upon determining that Graham was not required to request alternative work after he was told that there were no more openings, we reversed the Board's decision to disqualify Graham. See Graham, supra.

In Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981), we reversed and remanded a denial of unemployment compensation benefits. In that case, the appellant accepted a grinder machine operation position even though he had poor eyesight and an infirm leg. After three days, the appellant quit because "standing in one place caused him to ache all over and his limited vision prevented him from performing his job duties properly." We held that:

[Appellant] was entitled to believe that no other position would be available to him. For him to have made an effort in this instance to preserve his job rights would have required him to make what would have amounted to a futile gesture. He had been told that the grinding machine position was the only one available to him.

Id. at 203, 618 S.W.2d at 173.

Again, in Boothe v. Director, 59 Ark. 169, 954 S.W.2d 946 (1997), the Board of Review found that the claimant failed to make reasonable efforts to preserve his job rights. Claimant and his wife worked for a family business that was owned by Mr. and Mrs. James Berry and their son, Tommy Berry. The claimant quit after learning that his wife had been the victim of sexual harassment by James Berry. We noted that the evidence revealed that Tommy and James shared equally in the supervision of employees and that Tommy never overruled his father's decision. We then reversed the Board of Review, holding that "an employee is not required to take measures to resolve a problem with his employer if such measures would constitute nothing more than a futile gesture." See Boothe v. Director, supra.

Turning to the case at bar, the Board determined that although appellant left her employment due to an on-the-job injury, appellant failed to make a reasonable effort to preserve her job rights. In making its decision, the Board observed that appellant worked for appellee for ten months before she quit without complaining to the vice-president of management or to a union representative. It determined that appellant had a responsibility to make appellee aware that the circumstances at work were not adequately facilitating her injury, and that appellant's failure to speak with a member of management about her on-going problems during the ten months before she quit constituted a lack of good faith. We agree.

Ms. Carter testified that from February 2000 until October 2000, appellant never requested light duty work or complained to Ms. Carter that the work was aggravating her condition. In addition, Mr. Hendrix testified that other than a casual conversation in January 2000, appellant did not discuss her working conditions with him. There is nothing in the record to indicate that appellant initiated a grievance procedure with her union representative. Nor is there any evidence that doing so would have amounted to a "futile gesture" on the part of appellant. As previously stated, our review is not dictated by whether we would have reached a different result than the Board or whether the evidence would have supported a different result than the decision reached by the Board. Viewing the evidence, as we are required to do, in a light most favorable to the Board, and considering our limited review as to whether the Board could have reasonably reached its conclusion based on the evidence presented to the Board, we affirm.

Affirmed.

Bird and Baker, JJ., agree.

1 Appellant's injury was initially accepted as compensable by appellee, who paid for appellant's medical bills related to her treatment. However, appellee controvertedwhether the surgery recommended by Dr. Moore was reasonable and causally connected to appellant's employment. A workers' compensation hearing on the matter occurred on October 24, 2000, the day following appellant's resignation. The opinion of the administrative law judge (ALJ), which was proffered into evidence, found that appellant's need for medical treatment was causally related to her injury. Appellee did not appeal the ALJ's decision.

2 This videotape, which was prepared by appellee, was provided to Dr. Moore by appellee.