William E. Tarvin v. Director, Employment Security Department and Willis Shaw Frozen Express

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

WILLIAM E. TARVIN

APPELLANT

V.

DIRECTOR, EMPLOYMENT

SECURITY DEPARTMENT and

WILLIS SHAW FROZEN EXPRESS

APPELLEES

E 02-259

APRIL 30, 2003

APPEAL FROM THE BOARD OF

REVIEW, [NO. 2002-BR-1334]

AFFIRMED

Appellant William E. Tarvin appeals the denial of unemployment benefits by the Board of Review, which found that Tarvin voluntarily left his last employment without good cause connected with the work. We hold that substantial evidence supports the Board's conclusion and affirm.

Tarvin worked as a truck driver for Willis Shaw Frozen Express for three months, January 28, 2002, through April 28, 2002. Tarvin submitted a letter of resignation on May 1, 2002, stating that he needed to assist his wife in the care of her two grandchildren, ages fifteen and five, over whom she had legal guardianship. Tarvin explained that his wife worked part-time, that the children's mother had intermittently helped to care for the children in the past but had become incapable of doing so, that his wife suffered from fibromyalgia, and that her health required that he be home after regular working hours to

assist with their care, to provide a stable environment, and to assist with household chores. Tarvin filed a claim for unemployment benefits, but the application was denied. Tarvin appealed to the Appeals Tribunal, was denied, and sought review by the Board of Review. The Board found that Tarvin left his job voluntarily without good cause connected with the work. Tarvin has now appealed to this court.

The scope of appellate review in cases such as this is well-settled and oft-stated:

On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.

See Fleming v. Director, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001); see also Hiner v. Director, 61 Ark. App. 139, 965 S.W.2d 785 (1998); Rodriguez v. Director, 59 Ark. App. 8, 952 S.W.2d 186 (1997). The basic design of the employment security law is to protect the employee from the economic consequences of unemployment resulting from no fault of the employee; to that end, the statutes should be liberally construed. See Wortham v. Director, 31 Ark. App. 175, 790 S.W.2d 909 (1990).

The statute applicable to the present appeal is Ark. Code Ann. § 11-10-513 (Repl. 2002), which provides in pertinent part:

(a)(1) If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.

....

(b) No individual shall be disqualified under this section if, after making reasonable efforts to preserve his or her job rights, he or she left his or her 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 or she left his or her last work because of illness, injury, pregnancy, or other disability.

This statute does not require an individual to offer medical proof of a personal emergency to his employer. See Timms v. Director, 6 Ark. App. 163, 639 S.W.2d 368 (1982).

The Board found that Tarvin's resignation was motivated by his desire to assist in customary household duties and to be home every night. The Board found that he and his wife had cared for the children for the previous three years and that the fifteen-year-old child could likely assist with the care of the younger child. The Board concluded that it agreed with the Appeals Tribunal that while Tarvin's intentions were laudable, the circumstances did not present a compelling personal emergency pursuant to Ark. Code Ann. § 11-10-513(b). Because the Board decided the claim on the ground there was a lack of a compelling personal emergency, it was not necessary for it to address whether he made reasonable efforts to preserve his job rights. See Rivers v. Stiles, 16 Ark. App. 121, 697 S.W.2d 938 (1985). We hold that substantial evidence supports the Board's conclusion.

Our supreme court found that the claimant had a personal emergency in Wade v. Thornbrough, 231 Ark. 454, 330 S.W.2d 100 (1959), where Ms. Wade quit her work because she could not find anyone to take care of her five children who had the measles, and she could not get a leave of absence. The supreme court said that Ms. Wade did not quit toperform solely customary household duties, but instead was faced with a personal emergency. See id.

Another such situation was presented in Timms v. Director, supra, where Mr. Timms was employed as a machinist with a company in California, while his pregnant wife remained in Arkansas. The wife planned to relocate to California, but before this happened, she called Timms and asked him to come home because she fell and was afraid she might have injured the baby. Timms stated that he asked for a leave but was denied one and that there was no one else to take care of his wife. This court held that this situation constituted a personal emergency.

In Valentine v. Barnes, 1 Ark. App. 308, 615 S.W.2d 386 (1981), Ms. Valentine requested additional maternity leave after returning after the birth of her child because her newborn was sick. This request was denied by employer. Ms. Valentine quit her job and sought unemployment benefits, and this court held that Ms. Valentine was confronted with a personal emergency of compelling urgency, corroborated by the testimony of a doctor verifying the illness, and she made reasonable efforts to preserve her job rights in asking for additional leave time.

In Morse v. Daniels, 271 Ark. 402, 609 S.W.2d 80 (Ark. App. 1980), Ms. Morse was a restaurant manager who asked for a thirty-day leave of absence so that she could care for her seriously ill parents upon their release from the hospital. Morse was unable to offer an exact date of return given their health, but the facts showed that she was able to leave them on their own after three weeks. This court reversed the denial of unemployment benefitsholding that Morse could not with good conscience abandon her parents at such a critical time; that she was honest and candid with her employer; and that she conscientiously sought a leave of absence.

None of the above-cited cases compel reversal of the present appeal. Tarvin's resignation was motivated by an admirable desire to be home to assist with his wife's grandchildren, particularly after typical working hours. Nevertheless, the facts presented do not meet the urgency of the situations that our appellate courts have deemed to qualify as personal emergencies. The cases we have examined uniformly include a serious illness and the lack of any other person to assist with the ill family member or members. Tarvin candidly admits that his situation presents no such ill family member. Tarvin nonetheless argues that liberal interpretation mandates that he not be disqualified from receiving benefits. We cannot agree. Giving the Board's factual conclusions the strongest probative force, we hold that substantial evidence supports the conclusion drawn and affirm the Board. Affirmed.

Stroud, C.J., and Crabtree, J., agree.