        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-00804-COA

BEDFORD CARE CENTER OF MARION, LLC                                         APPELLANT

v.

CENITHER NICHOLSON                                                           APPELLEE

DATE OF JUDGMENT:                          05/12/2014
TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    ROBIN L. ROBERTS
ATTORNEY FOR APPELLEE:                     CENTHER NICHOLSON (PRO SE)
NATURE OF THE CASE:                        CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                   REVERSED DECISION OF THE BOARD OF
                                           REVIEW OF THE MISSISSIPPI
                                           DEPARTMENT OF EMPLOYMENT
                                           SECURITY, FINDING THAT APPELLEE
                                           WAS DISQUALIFIED FROM RECEIVING
                                           UNEMPLOYMENT BENEFITS
DISPOSITION:                               AFFIRMED - 01/24/17
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    The Mississippi Department of Employment Security’s Board of Review (Board)

affirmed the denial of unemployment benefits following Cenither Nicholson’s termination

from Bedford Care Center of Marion LLC (Bedford Care). The Circuit Court of Marion

County reversed the denial of benefits, finding that Nicholson did not, when applying for the

Bedford Care job, intentionally misrepresent whether she had ever previously filed a

workers’ compensation claim or been injured on the job. We affirm the circuit court’s
judgment.

                        FACTS AND PROCEEDINGS BELOW

¶2.    In 2008, while working as certified nursing assistant (CNA) at East Mississippi State

Hospital (EMSH), Nicholson pulled a muscle in her back while helping a patient who had

fallen onto the floor.1 The Hospital paid for Nicholson’s emergency-room visit and she

missed two or three days of work. In September 2012, Bedford Care hired Nicholson as a

CNA. As part of the post-offer hiring process, Nicholson filled out a questionnaire asking

if she had ever been injured on the job or filed a workers’ compensation claim. She answered

no to these questions. Some months later, a routine audit of personnel files revealed the

previous workers’ compensation claim on her behalf related to her emergency-room visit

while employed at EMSH. Nicholson was terminated from Bedford Care in May 2013 for

the sole reason that she falsified information on her employment application.

¶3.    Nicholson filed an unemployment claim, which was denied on the basis that

Nicholson was discharged for misconduct connected with her employment and was therefore

disqualified from receiving benefits. Nicholson appealed the denial of her claim. An

administrative-law judge (ALJ) conducted a telephonic hearing. At the hearing, concerning

the questions related to whether she had ever filed a workers’ compensation claim, Nicholson

testified: “I thought they was talkin’ about like a paycheck, money from Workman’s Comp.

I, I didn’t know that like when they send you to the doctor, when you get hurt, that’s the same



       1
        “EMSH is a ‘state psychiatric hospital and institution,’ established in 1882.” Ivy v.
E. Miss. State Hosp., 191 So. 3d 120, 121 n.1 (Miss. 2016) (quoting Miss. Code Ann. § 41-
17-3 (Rev. 2013)).

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as Workman’s Comp. When you go to the emergency room. I didn’t know that.”

¶4.    She further testified that she understood the question about whether she had ever been

injured on the job to refer to a serious injury that prevented her from working, and that it did

not occur to her to report the incident of the pulled back muscle because it did not prevent

her from working. She also testified that it blended in with other memories of her experience

working at EMSH where she worked “on a unit where they fight a lot and we had to break

up a lot of fights and sometimes you get scratched up or you might get knocked down or

somethin’ like that.”

¶5.    The Bedford Care administrator who fired Nicholson testified that receiving accurate

information related to past injuries was relevant to determining an applicant’s physical ability

to perform the job of nursing assistant. The application and the company’s employee-policy

handbook stated that providing false information on the application was grounds for

termination.

¶6.    The ALJ ultimately determined that Nicholson was disqualified from receiving

benefits, stating “[t]he application asked four specific questions related to prior injuries and

workers’ compensation claims. The claimant responded in the negative to all[,] which would

indicate a willful or intentional falsification of information.” Nicholson appealed the ALJ’s

decision to the Board. The Board affirmed the decision of the ALJ.

¶7.    Nicholson then appealed the Board’s affirmance of the ALJ to the Circuit Court of

Lauderdale County. The circuit court, sitting as an intermediate appellate court, reversed the

Board, stating:



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       [Nicholson’s] testimony demonstrates that she neither understood the questions
       being asked on the [employment application,] nor did she intentionally provide
       false information; therefore, she did not intentionally provide false information
       during the hiring process.

In particular, the circuit court referenced Nicholson’s testimony that she did not receive any

money, that she “didn’t know that going to the doctor was the same thing as Workman’s

Compensation,” and that she thought that the questions about whether she had ever been

injured on the job were referencing a serious injury that would prevent her from working.

¶8.    Bedford Care appeals.

                                       DISCUSSION

¶9.    Our review of an administrative agency’s findings and decisions is limited, and an

agency’s conclusions will remain undisturbed unless the agency’s decision (1) is not

supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope of

power granted to the agency, or (4) violates the claimant’s constitutional rights. Miss. Emp’t

Sec. Comm’n v. Ratcliff, 754 So. 2d 595, 597 (¶9) (Miss. Ct. App. 2000). Appeals from the

Board are governed by Mississippi Code Annotated section 71-5-531 (Rev. 2011), which

provides:

       In any judicial proceedings under this section, the findings of the Board of
       Review as to the facts, if supported by evidence and in the absence of fraud,
       shall be conclusive, and the jurisdiction of said court shall be confined to
       questions of law.

“[A]n order of the Board . . . on the facts is conclusive upon the lower court, if supported by

substantial evidence and in the absence of fraud, and the scope of review requires the

determination of the sufficiency of the evidentiary basis of the decision.” Wheeler v. Arriola,



                                              4
408 So. 2d 1381, 1384 (Miss. 1982).

¶10.   “In misconduct cases, the employer bears the burden to prove by substantial, clear,

and convincing evidence that a former employee’s conduct warrants disqualification of

benefits.” Over the Rainbow Daycare v. Miss. Dep’t of Emp’t Sec., 188 So. 3d 1249, 1251

(¶7) (Miss. Ct. App. 2016). Disqualifying misconduct is “conduct evincing such willful and

wanton disregard of the employer’s interest as is found in deliberate violations or disregard

of standards of behavior which the employer has the right to expect from his employee.”

Wheeler, 408 So. 2d at 1382. However, an employee’s conduct may harm the employer’s

interests and justify discharge from employment, yet not rise to the level of willful or wanton

so as to invoke disqualification for unemployment-insurance benefits. Acy v. Miss. Emp’t

Sec. Comm’n, 960 So. 2d 592, 595 (¶14) (Miss. Ct. App. 2007).

¶11.   Falsification of an employment application can be grounds for disqualification of

benefits. Ratcliff, 754 So. 2d at 598 (¶14). In Ratcliff, this Court affirmed the Board’s2 denial

of unemployment benefits to a claimant who failed to disclose that her most recent employer

was Walmart when filling out a Target application that requested the applicant to list

previous employment. Id. at 596 (¶3). The employee in Ratcliff did not misunderstand the

question on the application, but rather made her own decision that an accurate answer was

not relevant. Id. at 598 (¶17). In agreeing with the Board’s conclusion that Ratcliff’s conduct

disqualified her for unemployment benefits, we rejected Ratcliff’s argument that “she did not

intend to deceive Target but was only doing what she thought would best inform Target of

       2
       At that time, the agency was known by its former name, the Mississippi
Employment Security Commission.

                                               5
her relevant work experience within the limits of the available space on the application.” Id.

at 596 (¶3). The circuit court had reversed the Board’s denial of Ratcliff’s benefits, finding

that she had offered a “plausible explanation” for omitting her prior employment at Walmart.

Id. at 597-98 (¶14). In reversing the circuit court, we stated that the “plausible explanation”

was “an improper focus of the court’s attention” and that the relevance of the applicant’s

immediately previous work experience was for the employer to determine. Id.

¶12.   Here, Nicholson did not understand the application questions about workers’

compensation to be related to her emergency-room visit and injury from several years

previously. Her testimony at the hearing supports that she understood filing a workers’

compensation claim to involve receiving a paycheck substitute for inability to come to work,

and that she did not understand her employer’s payment for the emergency-room visit to be

within the concept of workers’ compensation. This misunderstanding falls short of willful

and wanton misconduct that would disqualify her from receiving unemployment-insurance

benefits.

¶13.   While Bedford Care has a legitimate interest in ascertaining the physical ability of

prospective CNAs to perform their jobs, Nicholson’s conduct in providing an inaccurate

answer on her application must have been willfully and wantonly against Bedford Care’s

interests in order to disqualify her from receiving unemployment benefits. Violation of

company policy can warrant employment termination without, at the same time, constituting

“misconduct” for purposes of disqualifying the employee from benefits. Miss. Emp’t Sec.

Comm’n v. Woods, 938 So. 2d 359, 365 (¶12) (Miss. Ct. App. 2006) (claimant’s failure to



                                              6
contact employer for five months while on medical leave, in violation of company policy, did

not constitute misconduct). Even if Nicholson’s inaccurate answers on her application

warranted her dismissal as a violation of company policy, they do not rise to the level of

“willful” or “wanton” so as to warrant disqualification of unemployment-insurance benefits.

We therefore affirm the circuit court’s reversal of the Board.

                                      CONCLUSION

¶14.   We agree with the circuit court that substantial evidence was not presented below to

support that Nicholson acted in such willful or wanton disregard of her employer’s interest

that disqualification of unemployment benefits is warranted. We therefore affirm the circuit

court’s reversal of the Board’s denial of benefits.

¶15. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND
WILSON, JJ., CONCUR. FAIR AND WESTBROOKS, JJ., NOT PARTICIPATING.




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