             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                           July 12, 1999

THOMAS E. MOREFIELD, II,                  )             Cecil Crowson, Jr.
                                          )            Appellate Court Clerk
       Petitioner/Appellant,              )
                                          )   Appeal No.
VS.                                       )   01-A-01-9807-CH-00385
                                          )
O’BRIEN HEATING AND COOLING,              )   Davidson Chancery
INC., HAZEL ALBERT, in her official       )   No. 97-3854-I
capacity as acting COMMISSIONER           )
OF EMPLOYMENT SECURITY, AIR               )
CONDITIONING SERVICE, INC., and           )
LIBERTY HEALTHCARE,                       )
                                          )
       Respondents/Appellees.             )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




ROBERT ORR, JR.
210 Third Avenue, North
P. O Box 190683
Nashville, Tennessee 37219-0683
      Attorney for Petitioner/Appellant

PAUL G. SUMMERS
Attorney General and Reporter

DOUGLAS EARL DIMOND
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0499
       Attorney for Respondents/Appellees



                           AFFIRMED AND REMANDED



                                              BEN H. CANTRELL,
                                              PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                OPINION
              In this case the question is whether an employee’s failure to return to

work after an on-the-job injury is misconduct that disqualifies him for unemployment

benefits. The Chancery Court of Davidson County affirmed the denial of benefits by

the Department of Employment Security’s Board of Review. We affirm.



                                            I.



              In the fall of 1996, Thomas Morefield injured his back on the job as an

air conditioner service technician. He continued to work with increasing pain until

January of 1997, when he left the job to get medical attention. In February of 1997,

Mr. Morefield’s doctor released him to return to work with a twenty-five pound lifting

restriction. Mr. Morefield, however, failed to report back to work. He thought he could

not do the heavy lifting involved, and he did not check with his employer to see if he

could be assigned to light duty, or to the office staff. There is proof in the record that

if he had reported for work, the employer would have provided Mr. Morefield with work

that he could perform.



              Since Mr. Morefield did not return to work, his employer terminated him

on March 27, 1997. The reason stated in the termination letter was the failure to

return to work for thirty days after being released by the doctor.



              Mr. Morefield applied for unemployment compensation, but the Board

of Review affirmed an Appeals Tribunal’s denial of benefits “under Tenn. Code Ann.

§ 50-7-303(a)(2)” (misconduct connected with the claimant’s work). The Chancery

Court of Davidson County affirmed the Board’s decision.



                                            II.



              Mr. Morefield does not dispute the facts nor the main points relied on by

the Board. He concedes that had he voluntarily quit his job he would have been

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disqualified from receiving benefits. Tenn. Code Ann. § 50-7-303(a)(1). He also

concedes that excessive absenteeism can be misconduct connected with his work

under Tenn. Code Ann. § 50-7-303(a)(2). See Wallace v. Stewart, 559 S.W.2d 647

(Tenn. 1977); Simmons v. Traughber, 791 S.W.2d 21 (Tenn. 1990); Simmons v.

Culpepper, 937 S.W.2d 938 (Tenn. App. 1996).



              He argues, however, that the same cases hold that absences due to

illnesses and job injuries do not constitute misconduct under the statute. We agree.

But the Board found that his refusal to return to work after being released by his

doctor (albeit with lifting restrictions) was unjustified. The chancellor concurred and

made this finding of fact:


                     The court finds that petitioner was not absent from
              work due to his job-related injury because, his doctor had
              released him to return to light duty work and his employer
              was prepared to make light duty work available to him.
              Nevertheless, petitioner made a deliberate decision not to
              contact his employer or offer himself for work between the
              time he was released from his doctor on February 25,
              1997 and March 27, 1997, the date he was terminated
              from his employment.



              Our duty is to determine if the Board’s “findings, inferences, conclusions,

or decisions are ‘[u]nsupported by evidence which is both substantial and material in

light of the entire record.’” Simmons v. Culpepper, 937 S.W.2d 938 at 943 (Tenn. App.

1996). See Tenn. Code Ann. § 50-7-304(i)(2)(E). We are of the opinion that the

Board’s conclusion and the chancellor’s finding are supported by substantial and

material evidence.



              We affirm the judgment of the trial court and remand this cause to the

Chancery Court of Davidson County for any further proceedings necessary. Tax the

costs on appeal to the appellant.




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                                      _____________________________
                                      BEN H. CANTRELL,
                                      PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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