                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs December 8, 2011

         KENARD P. WALLACE v. COMMISSIONER OF LABOR &
                WORKFORCE DEVELOPMENT ET AL.

                Appeal from the Chancery Court for Lawrence County
                  No. 1502710     Robert Lee Holloway, Jr., Judge


               No. M2011-00710-COA-R3-CV - Filed February 7, 2012


Truck driver was discharged for having too many accidents pursuant to employer’s policy
on preventable accidents. He was denied unemployment benefits and the denial was upheld
by the Appeals Tribunal, the Board of Review and the Chancery Court. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.,
and R ICHARD H. D INKINS, JJ., joined.

J. Daniel Freeman, Lawrenceburg, Tennessee, for the appellant, Kenard P. Wallace.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Lindsey Owusu Appiah, Assistant Attorney General; and Laurie Lee Doty, Nashville,
Tennessee, for the appellees, Commissioner of Labor & Workforce Development and Sharp
Transportation, Inc.

                                        OPINION

                                       B ACKGROUND

       Mr. Kenard Wallace was employed by Sharp Transportation (“Sharp”) from
November 5, 2002, until his termination on December 22, 2009. He was terminated for
violating the company’s policy regarding preventable accidents.

       Wallace worked for Sharp as an over-the-road truck driver. According to a letter in
the record from Bonnie Tatum, Sharp’s Director of Safety and Recruiting:
       Since 2007, Mr. Wallace has been involved in six accidents. Of the six, five
       were ruled as preventable. We counseled Mr. Wallace when each incident
       happened. In 2007 we sent him through a course at Metro Ready Mix where
       he had an instructor and worked with a tractor-trailer simulator. . . . In 2008 we
       sent him through a Defensive Driving Class given at our facility by one of our
       insurance agents.

       On February 24, 2009, Wallace had a preventable accident in Texas. He received a
warning notice on February 26, 2009, that this accident was his second preventable accident
within three years and that he was at the maximum number of accidents that the company’s
policy allows. Consequently, the warning notice indicated that he was placed on probation
and that “[a]ny preventable accident before Oct. 2010 will result in disqualification per our
company hiring guidelines.”

       Unfortunately, on December 10, 2009, Wallace had another preventable accident.1
This accident resulted in his termination December 22, 2009. He immediately filed a claim
for unemployment benefits, which was denied. Wallace appealed to the Appeals Tribunal
and a hearing was held on March 29, 2010. Both Wallace and Bonnie Tatum testified. The
Appeals Tribunal affirmed the agency decision denying benefits, stating:

       In the opinion of the Appeals Tribunal, the claimant was discharged for
       negligence of such a degree or recurrence as to show an intentional or
       substantial disregard for the employer’s interest. The Appeals Tribunal finds
       that the claimant was discharged for misconduct connected with work under
       TCA § 50-7-303(a)(2).

       Wallace then appealed the Appeals Tribunal decision to the Board of Review. On
July 13, 2010, the Board affirmed the Appeals Tribunal decision. A rehearing was denied
on August 5, 2010. Wallace appealed that decision to the Chancery Court of Lawrence
County. The Chancery Court affirmed the decision, concluding that “Wallace’s record of
preventable accidents amounted to misconduct connected with work under Tenn. Code Ann.
§ 50-7-303(a)(2).” Wallace now appeals to this court.

                                          S TANDARD OF R EVIEW

        The standard of review employed by appellate courts in unemployment compensation
cases is the same as the one employed by the trial courts. DePriest v. Puett, 669 S.W.2d 669,



       1
           His truck hit a utility pole while he was making a right turn.

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673 (Tenn. Ct. App. 1984). The court may reverse, remand, or modify the administrative
decision if it is:

        (A) In violation of constitutional or statutory provisions;

        (B) In excess of the statutory authority of the agency;

        (C) Made upon unlawful procedure;

        (D) Arbitrary or capricious or characterized by abuse of discretion or clearly
        unwarranted exercise of discretion; or

        (E) Unsupported by evidence that is both substantial and material in the light
        of the entire record.

Tenn. Code Ann. § 50-7-304(i)(2). For purposes of subsection (E), substantial and material
evidence is “such relevant evidence as a reasonable mind might accept to support a rational
conclusion and such as to furnish a reasonably sound basis for the action under
consideration.” Sweet v. State Technical Inst. at Memphis, 617 S.W.2d 158, 161 (Tenn. Ct.
App.1981) (quoting Pace v. Garbage Disposal Dist. of Washington County, 390 S.W.2d 461,
463 (Tenn. Ct. App.1965)). This court cannot substitute its judgment for that of the
administrative body “as to the weight of the evidence on questions of fact.” Tenn. Code Ann.
§ 50-7-304(i)(3).

                                              A NALYSIS

        An unemployment benefits claimant who is discharged due to misconduct connected
with the claimant’s work is disqualified from receiving benefits. Tenn. Code Ann. § 50-7-
303(a)(2)(A). There was no definition of misconduct in the unemployment compensation
statutes at the time Wallace was fired.2 The Tennessee Supreme Court has stated: “[I] n order
to establish a disqualification there must be shown a material breach of some duty which the
employee owes to the employer.” Cherry v. Suburban Mfg. Co.,745 S.W.2d 273, 275 (Tenn.
1988). Case law further indicates that “misconduct” includes:

        conduct evincing such wilful and wanton disregard of an employer’s interests
        as is found in deliberate violations or disregard of standards of behavior which
        the employer has the right to expect of his employee, or in carelessness or


       2
        A definition of “misconduct” has been added to the unemployment compensation statutes, effective
January 1, 2010, by Chapter 479 of the 2009 Public Acts of Tennessee.

                                                  -3-
       negligence of such degree or recurrence as to manifest equal culpability,
       wrongful intent or evil design, or to show an intentional and substantial
       disregard of the employer’s interests or of the employee’s duties and
       obligations to the employer. On the other hand mere inefficiency,
       unsatisfactory conduct, failure in good performance as the result of inability
       or incapacity, inadvertences or ordinary negligence in isolated instances, or
       good faith errors in judgment or discretion are not to be deemed “misconduct”
       within the meaning of the statute.

Armstrong v. Neel, 725 S.W.2d 953, 956 (Tenn. Ct. App.1986) (citing Boynton Cab Co. v.
Neubeck, 296 N.W. 636, 640 (Wis.1941)). For this court to uphold “the Board of Review’s
application of the provisions of the statute, we need not find that its construction is the only
reasonable one or even that it is the result we would have reached had the question arisen in
the first instance in a judicial proceeding.” Sabastian v. Bible, 649 S.W.2d 593, 594 (Tenn.
Ct. App.1983). Our reviewing function is limited: “All that is needed to support the
commission’s interpretation is that it has warrant in the record and a reasonable basis in law.”
Id. at 594-95 (citing Cawthron v. Scott, 400 S.W.2d 240, 242 (Tenn. 1966)).

       Wallace maintains that the commissioner’s decision is arbitrary and capricious
because the employer decides what is a “preventable accident” under its policy and that the
“simple negligence” involved in Wallace’s accidents does not rise to the level of
“misconduct” under the law. We note that Wallace was not discharged until after Sharp’s
accident review board met. An accident caused by “simple negligence” is virtually always
preventable. Negligence can indeed rise to the level of misconduct when the negligence is
“of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design,
or to show an intentional and substantial disregard of the employer’s interests or of the
employee’s duties and obligations to the employer.” Armstrong, 725 S.W.2d at 956. Isolated
instances of negligence are not misconduct, Id., but, as Tatum testified, Wallace displayed
a repeated pattern of negligence. The trial court found that Wallace’s “negligence was not
isolated, but rather was so recurring that his conduct was equal in culpability to intentional
and substantial disregard of Sharp’s interest.” This finding led the trial court to the
conclusion that Wallace’s conduct “amounted to misconduct connected with work under
Tenn. Code Ann. Sec. 50-7-303(a)(2).” The trial court affirmed the Appeals Tribunal and
the Board of Review. We agree.

       Similarly, Wallace argues that the decision is “unsupported by evidence that is both
substantial and material in the light of the entire record.” Tenn. Code Ann. § 50-7-304(i)(2).3


       3
           Wallace asserts that Doji, Inc., v. Neeley, No. M2009-00822-COA-R3-CV, 2009 WL 5183791
                                                                                       (continued...)

                                                  -4-
We have carefully reviewed the record and must respectfully disagree. We affirm the
decision of the trial court, which found that substantial and material evidence did exist to
support the administrative decisions.

        Costs of appeal are assessed against the appellant, Kenard P. Wallace.


                                                               ______________________________
                                                                    ANDY D. BENNETT, JUDGE




        3
          (...continued)
(Tenn. Ct. App. June 17, 2010) (not for citation), supports his cause. We note that the Supreme Court denied
certiorari and designated the opinion as “Not For Citation.” This designation means that the opinion “has
no precedential value” and is not to be cited. Tenn. Sup. Ct. Rule 4(E)(1)&(2). Therefore, we cannot
consider it; but, if we did, we would find it distinguishable from the instant case.

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