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.