FRANK E. ADKINS, Appellant,

vs.

ADMINISTRATOR, STATE OF OHIO BUREAU OF EMPLOYMENT SERVICES,

et al., Appellees.

No. 93-L-125
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, LAKE COUNTY
1994 Ohio App. LEXIS 4123
September 16, 1994, Decided

CHARACTER OF PROCEEDINGS: Administrative Appeal from the Court of Common Pleas. Case No. 93 CV 000317

 COUNSEL

ATTY. DAVID M. KING, 401 South Street, Chardon, OH 44024, For Appellant.
LEE I. FISHER, ATTORNEY GENERAL, CHARLETT BUNDY, ASSISTANT ATTORNEY GENERAL, State Office Building, 12th Floor, 615 West Superior Avenue, Cleveland, OH 44113-1899, For Appellee, Administrator, State of Ohio Bureau of Employment Services. ATTY. GLENN R. JONES, 803 East Washington Street, #200, Medina, OH 44256, For Appellee, Lincoln Electric Co., Inc.

 JUDGES

HON. DONALD R. FORD, P.J., HON. JOSEPH E. MAHONEY, J., HON. ROBERT A. NADER, J.
 AUTHOR: NADER

 OPINION

 

 

 
NADER, J.

 

This appeal is from the Lake County Court of Common Pleas. Appellant, Frank E. Adkins, appeals the denial of an application for unemployment compensation benefits. Appellees are appellant's former employer, Lincoln Electric Co., Inc. ("Lincoln Electric"), and the Administrator of the Ohio Bureau of Employment Services.

 

Appellant became employed with Lincoln Electric as an assembly line worker in March of 1990. On October 24, 1990, appellant advised the employer that he injured his back while at work. Appellant was off work from October 25, 1990 to November 11, 1990. Appellant filed a workers' compensation claim, and was awarded compensation for temporary total disability. Appellant returned to work without restriction.

 

Appellant advised the employer that he had a reoccurrence of his back injury on May 28, 1991. He was off work from May 29, 1991 to June 9, 1991. Appellant received workers' compensation benefits for this period. Appellant returned to work with a doctor-ordered light duty restriction, which was to last six to eight weeks. The employer attempted to honor this restriction pursuant to their modified work program.

 

During this second period of disability, rumors arose within the company that appellant was working for Jack's Auto Transmission Service ("Jack's Auto"), which is owned and operated by one of appellant's brothers. Appellant had been employed at Jack's Auto as an auto mechanic prior to his employment with Lincoln Electric. However, nothing was done about these rumors at that time.

 

On February 12, 1992, appellant advised the employer that he was experiencing excruciating pain in his back, and would not be in to work the following morning. Appellant's regular physician was out of town. Thus, on February 13, 1992, appellant went to another doctor who prescribed Motrin and advised appellant that he see his regular doctor the following week. Appellant did not return to work. Appellant saw his regular physician on February 17, 25, and March 5, 1992. Appellant was instructed by his doctor not to return to work, and was eventually approved to return on loyer was informed that appellant was again taking a medical leave from work, an investigative firm was engaged to conduct surveillance of appellant from February 14, 1992 through February 21, 1992. The decision of the referee for the Unemployment Compensation Board of Review, rendered on appeal from the administrator's order, contains the following findings of fact:

 

"During this period of time, claimant was observed working on his sister-in-law's car in the driveway. Claimant was bending and did not seem to be in any discomfort. The investigative agency made a video tape of the surveillance.

 

"On February 15, 1992, the investigative agency observed that claimant reported to Jack's Auto Transmission Service at approximately 9:00 a.m. At approximately 12:26 p.m., claimant was observed driving a green Oldsmobile Cutlass. At 2:30 p.m., claimant drove a white Camaro out of the garage at Jacks (sic) Auto Transmission service (sic). At 2:30 p.m., claimant left Jacks (sic) Auto Transmission Service, in a uniform which had the name Jack's Auto Transmission Service and drove a tow truck to a customer location. Claimant was observed hooking up the car which had to be towed. Claimant was able to lay on his back without any discomfort. Claimant bent down, stooped and hooked up the car to the tow truck without any visible discomfort. Claimant then returned back to the garage. At approx (sic) 3:42 p.m., claimant drove another vehicle out of the garage onto the parking lot. At approximately 3:47 p.m., claimant left Jacks (sic) Auto Transmission Service.

 

"On February 17, 1992 claimant left his home to go to the doctor. At approximately 2:00p.m., the surveillance investigator contacted the claimant's home. The investigator was advised by the claimant's wife that claimant was at Jacks (sic) Auto Transmission Service. The investigator went to the shop and observed the shop until approximately 4:30 p.m., with no activity. Claimant had not left the garage at that time.

 

"On February 18, 1992, claimant was observed reporting to Lincoln Electric Co. in regular street attire. Claimant was observed leaving Lincoln Electric Co. The investigator also observed that claimant had changed his clothing and when he reported to Jacks (sic) Auto Transmission Service, he was in one of their uniforms. Claimant was observed at the Jacks (sic) Auto Transmission Service until approximately 5:30 p.m., when the surveillance stopped.

 

"On February 19, 1992 through February 21, 1992, claimant was also observed being at Jacks (sic) Auto Transmission Service approximately three or four hours each of these days.

 

"Lincoln Electric Co., Inc. is a self-insured employer for Workers (sic) Compensation Claims (sic). The company prides itself in the fact that the employees are honest in disclosing injury, as it occurs, and they (sic) are willing to pay claims which are fair.

 

"In addition, the Lincoln Electric Co., Inc. has a guaranteed employment program. When the work slows down, the hours are divided and the company was about to work the reduced schedule at the time that the claimant went on disability. Claimant claimed temporary total disability and presented a doctors (sic) slip to show that he was unable to work from February 12, 1992 through March 9, 1992."

 

Additionally, the referee found that the employer had a policy that dishonesty or theft was ground for automatic termination.

 

On February 20, 1992, appellant's employment was terminated for the reason that appellant had actively engaged in employment at Jack's Auto while on disability leave from Lincoln Electric.

 

Appellant filed a claim for unemployment compensation. On April 6, 1992, the administrator determined that appellant was terminated without just cause and awarded benefits. The administrator disallowed the claim for the week ending March 7, 1992, because the claimant was unable to work the entire week as required by law, as evidenced by the doctor's note. This decision was affirmed upon reconsideration by the administrator.

 

The employer filed a timely appeal with the Board of Review. An evidentiary hearing before a referee was held on September 8, 1992. The referee reversed the administrator's decision in part, finding that appellant was terminated for just cause. Accordingly, appellant was not entitled to benefits. Additionally, the referee affirmed the disallowance for the week ending March 7, 1992. An application for further appeal with the Board of Review was disallowed.

 

Appellant then appealed to the court of common pleas pursuant to R.C. 4141.28(O). The parties submitted briefs in accordance with Loc.R. 27 of the Common Pleas Court of Lake County, General Division. On July 9, 1993, the trial court filed its decision, in which it affirmed, as modified, the decision below. The court concluded that sufficient evidence was contained in the record to support appellant's termination for just cause, but found the logic of the Board of Review in denying benefits for the week ending March 7, 1992 to be inconsistent with its determination of malingering. The trial court affirmed the board's denial of benefits but modified the opinion to support all denial upon just cause termination.

 

On appeal to this court, appellant presents one assignment of error:

 

"The trial court erred by holding that the decision of the unemployment compensation board of review that appellant was terminated for just cause was not unlawful, unreasonable, against the manifest weight of the evidence, or contrary to law."

 

R.C. 4141.28(O) provides that a common pleas court must affirm the decision of the Board of Review unless it finds the decision was unlawful, unreasonable, or against the manifest weight of the evidence. In reviewing the record, the role of the court is limited to determining whether the board's decision is supported by competent, credible evidence. Irvine v. Unemployment Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 18, 482 N.E.2d 587; Frato v. Ohio Bur. of Emp. Serv. (1991), 77 Ohio App.3d 193, 196, 601 N.E.2d 564. A court of appeals cannot reverse unless the common pleas court abused its discretion. Thake v. Unemployment Comp. Bd. of Rev. (1990), 67 Ohio App.3d 503, 587 N.E.2d 862; Duthie v. Morton Salt Co. (Jan. 14, 1994), Lake App. No. 92-L-194, unreported, at 5.

 

R.C. 4141.29(D)(2) provides in part that no person may be paid benefits for the duration of unemployment if the administrator finds that:

 

"(a) He quit his work without just cause or has been discharged for just cause in connection with his work * * *."

 

Pursuant to this statutory provision, the claimant has the burden of proving entitlement to unemployment compensation benefits. Irvine at 17. "Just cause" has been defined as "'* * * that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.'" Id., quoting Peyton v. Sun T. V. (1975), 44 Ohio App.2d 10, 12, 335 N.E.2d 751.

 

J. Gilbert Frey, Director of Employee Benefits and Relations at Lincoln Electric, testified at the hearing before the referee for the Board of Review that Lincoln Electric has a policy that an employee will be automatically discharged for dishonesty. Although the cause for discharge was originally termed a "conflict of interests," the referee determined that appellant was terminated for dishonesty: appellant was working at Jack's Auto while collecting workers' compensation benefits, despite being able to work at Lincoln Electric. This finding was based primarily upon the testimony of the investigator and the videotape footage secured by the investigator. It was also based upon the inconsistency of statements made by appellant to the administrator and at the hearing before the referee. Specifically, in appellant's statement before the administrator, appellant contended that he was working on his own car at Jack's Auto, and that he performed no work for the garage. At the hearing before the referee, appellant asserted that he was working on his brother's car, and admitted he had performed work for the garage, though allegedly only as favors for his brother. An appellate court is not to judge the credibility of witnesses, and may not reverse where reasonable minds might reach different conclusions upon the evidence. Irvine at 18. As there is competent, credible evidence to support the referee's finding, the common pleas court did not abuse its discretion in affirming this determination.

 

Moreover, the transcript of the hearing before the referee contains the following exchange:

 

"Q. * * * You're aware of their modified work program, guaranteed job program.

 

"A. Yes, I am.

 

"Q. You are aware that they will attempt to find work for you within any physical restrictions you might have.

 

"A. They did not do that though.

 

"THE REFEREE: Sir, be responsive to the question. Is there such a program?

 

"MR. ADKINS:

 

"A. No, I'm not aware of it.

 

"BY MR. JONES:

 

"Q. They did change your job at one point in time I believe you testified to comply with you (sic) restrictions. Is that correct?

 

"A. Yes, they did.

 

"* * *

 

"THE REFEREE: When you saw -- you said you had excruciating pain the first few days then you went to the doctor and it wasn't so bad. You were waiting for this other doctor so you had a slip from the doctor saying that you should be off of work.

 

"MR. ADKINS: On Tuesday (Referee interrupts)

 

"MR. REFEREE: When you saw that you were feeling better. His question was, did you attempt to go to the Lincoln Electric and get some type of work with a work restriction? Sir did you or didn't you?

 

"MR. ADKINS: Not at the time, no."

 

Even if, as appellant argues, the activities of appellant observed on the investigator's videotape were not as strenuous and repetitive as his regular work duties at Lincoln Electric, there is competent, credible evidence in the record that the employer would have attempted to find work for appellant within the constraints of his physical restrictions, pursuant to its modified work program. Appellant was obligated in this instance to seek out such modified employment with Lincoln Electric, but failed to do so. Cf. Irvine; Thake.

 

In sum, the evidence supports the determination that appellant was working for his brother's business while on disability leave from Lincoln Electric and further, that appellant failed to prove that he was unable to return to work at Lincoln Electric. Accordingly, this court cannot reverse the judgment concluding that appellant's automatic termination for dishonesty was for just cause.

 

As appellant was terminated for just cause, he is not entitled to unemployment compensation benefits. R.C. 4141.29(D)(2). This judgment was determinative of appellant's additional claim for benefits for the week ending March 7, 1992. We conclude that the trial court did not abuse its discretion in modifying the order of the referee for the Board of Review concerning this "further disallowance" as the conclusion that appellant was unable to work that week is inconsistent with the finding that appellant was terminated for just cause. The referee for the Board of Review found that appellant was observed performing work comparable to that which claimant had to do at Lincoln Electric Co.

 

Appellant's assignment of error is without merit. The judgment of the trial court is affirmed.

 

JUDGE ROBERT A. NADER

 

FORD, P.J.,

 

MAHONEY, J.,

 

concur.

 DISPOSITION
 

JUDGMENT: Affirmed.