James R. Grier v. Director, Employment Security Department and Exide Corporation

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

JAMES R. GRIER

APPELLANT

V.

DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT and EXIDE CORP.

APPELLEES

E 01-250

SEPTEMBER 18, 2002

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. E 01-250]

AFFIRMED

Appellant, James R. Grier, appeals the decision of the Arkansas Board of Review, which affirmed the decision of the Appeals Tribunal disqualifying the appellant from receiving unemployment insurance benefits due to his termination from his last employer for misconduct in connection with the work on account of dishonesty. Appellant argues that the Appeals Tribunal abused its discretion by denying appellant's request for a continuance of the Appeals Tribunal's hearing and that the Board of Review abused its discretion by denying appellant's request for another hearing to receive additional evidence. We disagree and affirm.

Appellant was employed by Exide Corp., as an assembly line worker. Appellant became sick and was absent from work May 9, 2001, through May 22, 2001. Exide Corp.,

has an attendance policy that allows absences to be excused if a doctor's statement is presented by the employee within two days of returning to work. This policy also allows the employee to submit an application for short-term disability payments if the application is supported by documentation from a physician. On or about May 23, 2001, the appellant presented a doctor's statement from Dr. Kyle dated May 14, 2001, indicating that the appellant was excused from work on May 14 and May 15.

The human resource manager ("manager") testified at the Appeals Tribunal hearing that the appellant was informed that this statement would not cover all his absences. Appellant then provided the manager with another statement from a Dr. Alberty that appeared to be an itemized bill with several dates altered or marked through. However, the manager testified that even though appellant had a total of about thirty-five sick days, including those in May 2001, he was not in danger of being terminated for absenteeism. The company had a policy of terminating an employee when they accumulated twelve unexcused absences. The manager allowed the appellant to return to work and put aside his application for short-term disability until May 30, 2001. At that time, the manager noticed that dates on the application for short-term disability, which had been completed by Dr. Kyle, had been altered. The date of treatment and the date of impairment had both been altered, but only the date for treatment was initialed. The manager called Dr. Kyle's office and spoke with his secretary, Cheryl Davenport. Ms. Davenport informed the manager that she had in fact changed the date of treatment from May 14, 2001, to May 9, 2001, to reflect the onset of appellant's condition. The change was made at the directive of Dr. Kyle. Ms. Davenporttold the manager that no other change had been made, and that the appellant had asked them to change the date of impairment to May 9, 2001, but Dr. Kyle refused because he did not see appellant until May 14, 2001. Ms. Davenport also told the manager that appellant had become upset when the change was not made. A copy of the application that was in Dr. Kyle's file was faxed to the manager and later presented to the Appeals Tribunal. This copy only reflected the change to the date of treatment, not a change to the date of impairment. The manager testified that at this point the appellant was terminated for attempting to alter the disability application. Appellant denied, through his wife, that he had altered the application and made vague allegations that others had access to the application and could have altered it. Appellant asserted that the application had been on the manager's desk for a week, but the manager testified that it had been locked in the personnel files and that no one had access to the application. The Board of Review found that the appellant had been discharged from his last work for misconduct in connection with the work on account of dishonesty and was thus not eligible for benefits pursuant to Ark. Code Ann. § 11-10-514 (a)(1)(Repl. 2002). This appeal followed.

The appellant's first argument on appeal is that the Appeals Tribunal abused its discretion by denying appellant's request for a continuance for the hearing held on August 21, 2001. This issue was not developed at any administrative level, and we do not address arguments raised for the first time on appeal. Hiner v. Director, Arkansas Employment Sec. Dep't., 61 Ark. App. 139, 146, 965 S.W.2d 785, 789 (1998).

Appellant's second and final point on appeal is that the Board of Review abused itsdiscretion by denying appellant's request for a further hearing to receive additional evidence. The appellant suggests that fundamental fairness dictates that the Board of Review grant another hearing for the receipt of additional evidence because the appellant was unable to attend the hearing before the Appeals Tribunal. The appellant is asking this Court to order the Board of Review to take additional evidence in regard to his case, citing Ark. Code Ann. §11-10-529(c)(2)(A)(Repl. 2002) as our authority to so order the Board of Review. We agree that we have the authority to order the Board of Review to accept additional evidence, but decline to do so in this case.

In considering issues on appeal from the Board of Review, we consider findings of fact made by the Board of Review to be conclusive if supported by substantial evidence. Trigg v. Director, Employment Sec. Dep't., 72 Ark. App. 266, 34 S.W.3d 783 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We limit our review to determining whether the Board could have reasonably reached its decision based on the evidence before it. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id.

In the case at bar, appellant argues that he was not able to rebut the "surprise" testimony that was given by Exide's manger at the Appeals Tribunal hearing. The "surprise" testimony was that the manager testified that the short-term disability application had been locked in the personnel files. It appears that appellant assumed that the manager had left his file on her desk, but he never gives any reasons for this assumption. Appellant also assertsthat there was no "serious" cross-examination of the manager about other employees who may have had a motive to alter the application. Other than some slightly interesting conspiracy theories, the appellant offers nothing to show that the Board of Review abused its discretion by not granting appellant the opportunity to provide additional evidence. Appellant does not give any insight into what his additional evidence would be, or that it would be so probative as to outweigh the evidence that had already been presented to the Appeals Tribunal and the Board of Review.

In Maybelline Co. v. Stiles, 10 Ark. App. 169, 174, 661 S.W.2d 462, 465 (1983), this court stated that in deciding to remand for the taking of additional evidence we consider whether "each side has notice of and a fair opportunity to rebut the evidence of the other party." The appellant has not convinced us that he, nor his representative at the Appeals Tribunal hearing, had not been given ample opportunity to elicit evidence that would have produced a different finding from the Appeals Tribunal and subsequently the Board of Review. There is substantial evidence that the appellant altered his short-term disability application and thus was properly denied benefits due to being discharged for misconduct connected with work on account of dishonesty. It is also worth noting that in the court's review of the entire record, the appellant falsely stated his reason for termination on his application for unemployment benefits. He stated that he had been terminated for absenteeism due to a mistake on the doctor's note, even though he knew that he had been discharged for altering his application for short-term disability benefits.

Based on the review of the Board of Review's findings, we hold that there issubstantial evidence to support those findings and no viable reason to remand for the presentation of additional evidence. The denial of unemployment benefits to appellant is affirmed.

Jennings and Vaught, JJ., agree.