                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                           March 1, 2002 Session

CHATTANOOGA AREA REGIONAL TRANSPORTATION AUTHORITY
              v. GERALD D. AUTRY, ET AL.

                        Appeal from the Chancery Court for Hamilton County
                           No. 00-1073    Howell N. Peoples, Chancellor

                                            FILED APRIL 23, 2002

                                        No. E2001-01419-COA-R3-CV


This is an appeal by a former employee, Gerald D. Autry, of Chattanooga Area Regional
Transportation Authority, seeking unemployment benefits. The Chancellor overturned the
determination of the three separate Administrative Tribunals and found Mr. Autry was not entitled
to unemployment compensation. We affirm.

      Tenn.R.App.P. 3 Appeal As of Right; Judgment of the Chancery Court Affirmed;
                                    Cause Remanded

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY , JJ., joined.

Charles G. Wright, Jr., Chattanooga, Tennessee, for the Appellant, Gerald D. Autry

George M. Derryberry, Chattanooga, Tennessee, for the Appellee, Chattanooga Area Regional
Transportation Authority

                                                     OPINION

       In this appeal Gerald D. Autry1 contends that because he met the illness exception found in
T.C.A. 50-7-303(a)(1), the Chancellor was in error in denying his claim for unemployment
compensation on the ground that he did not have a medical examiner’s certificate attesting to his




         1
                The Comm issioner of Labor was ma de a p arty D efendan t in the p etition fo r judicial review filed in
the Chancery Court and initially also filed a notice of appeal, which was later withdrawn. Still later, the Comm issioner
moved to be permitted to re-enter the case on appeal. This motion was denied.
being physically qualified to drive a commercial motor vehicle, the Chancellor’s ruling overturned
three separate findings of tribunals below.2

       The Code Section Mr. Autry relies upon provides the following:

                  50-7-303. Disqualification for benefits. -- (a) Disqualifying Events. A
           claimant shall be disqualified for benefits:


                   (1) If the administrator finds that the claimant has left such claimant's most
           recent work voluntarily without good cause connected with such claimant's work.
           Such disqualification shall be for the duration of the ensuing period of
           unemployment and until such claimant has secured subsequent employment
           covered by an unemployment compensation law of this state, or another state, or
           of the United States, and was paid wages thereby ten (10) times such claimant's
           weekly benefit amount. No disqualification shall be made hereunder, however, if
           such claimant presents evidence supported by competent medical proof that such
           claimant was forced to leave such claimant's most recent work because such
           claimant was sick or disabled and notified such claimant's employer of that fact
           as soon as it was reasonably practical to do so, and returned to that employer and
           offered to work as soon as such claimant was again able to work, and to perform
           such claimant's former duties. Pregnancy shall be considered in the same way as
           any other illness or disability within the meaning of this subsection. At the
           expiration of such period, if the claimant is not reemployed, such claimant shall
           be entitled to unemployment benefits hereunder, if otherwise eligible under the
           provisions of this chapter. Nor shall this disqualification apply to a claimant who
           left such claimant's work in good faith to join the armed forces of the United
           States.

       We copy from the Chancellor’s opinion the pertinent facts and the standard of review of the
Board of Review’s decision which is the same standard we employ in reviewing the Trial Court’s
determination. Ford v. Traughber, 813 S.W.2d 141 (Tenn. Ct. App. 1991):

                   Autry was employed by CARTA as a Body and Building Facility
           Technician from April 7, 1997 to April 24, 2000. This position requires that
           Autry maintain a commercial driver’s license and medical certification from the
           Department of Transportation (DOT). Autry was forced to leave his employment
           for reasons that were not work related, as he was diagnosed with sleep apnea and
           narcolepsy. Autry began treatment for his condition and returned to CARTA for
           assignment. At this time Autry had a note from his physician, Daniel R. Smith,


       2
                 The determinations of the Agency, the Appeals Tribunal and the Board of Review.

                                                     -2-
M.D., stating that he was able to perform his duties. CARTA refused to allow
Autry to return to work on the grounds that Autry was no longer qualified to
perform the job.

       The Appeals Tribunal of the Department of Labor held a hearing on June
21, 2000 which afforded both CARTA and Autry an opportunity to present
evidence. At that hearing, uncontested proof was presented establishing that
Autry was required to a “Medical Examiner’s Certificate” that certified his
medical fitness to hold a commercial driver’s license as a condition of his
employment.

       ....


                       II. STANDARD OF REVIEW

       The standard of review that the Court is to apply when reviewing the
       decisions of the Department of Labor regarding claims for unemployment
       compensation is set forth in Tenn. Code Ann. § 50-7-304(i)(2) which
       provides:

  The chancellor may affirm the decision of the board or the chancellor may
  reverse, remand or modify the decision if the rights of the petitioner have
  been prejudiced because the administrative findings, inferences, conclusions
  or decisions are:

  (1) In violation of constitutional or statutory provisions;
  (2) In excess of the statutory authority of the agency;
  (3) Made upon unlawful procedure;
  (4) Arbitrary or capricious or characterized by abuse of discretion or
      clearly unwarranted exercise of discretion; or
  (5) Unsupported by evidence that is both substantial and material in the
    light of the entire record.

       However, the Court does not defer to the Department of Labor’s
conclusions of law. Frogge v. Davenport, 902 S.W.2d 920, 922 (Tenn. Ct. App.
1995); Perryman v. Bible, 653 S.W.2d 424, 429 (Tenn. Ct. App. 1983); Irvin v.
Binkley, 577 S.W.2d 677, 678 (Tenn. Ct. App. 1978).

       Additionally, the Court is instructed to interpret the disqualification
provision liberally in favor of the employee. Simmons v. Culpepper, 937 S.W.2d
938, 944 (Tenn. Ct. App. 1996) citing Weaver v. Wallace, 565 S.W.2d 867, 869
(Tenn. 1978).

                                      -3-
       It is arguable that given the minimal driving of a commercial vehicle, shown in the record
by Mr. Autry, and the fact that the vehicle was not driven on a public road, that the regulations are
not applicable to him.3 However, Section 8 of the petition seeking review of the Board of Review’s
determination, CARTA alleges the following, which is admitted in Mr. Autry’s answer:

                     8. Defendant Autry has admitted in the administrative proceedings below
             that he was aware of, and subject to, the federally-mandated requirements that he
             maintain and possess both a commercial driver’s license and the above-described
             medical examiner’s certificate. In fact, defendant Autry obtained two separate
             medical certifications required by the above-quoted regulations, such
             certifications expiring January 18, 1998, and January 21, 2000.

       In response to this allegation, Mr. Autry’s answer admits that this is true. Consequently, he
is bound by the regulations above set out, it is undisputed that he did not have a medical certificate,
which was a prerequisite to obtaining a current driver’s license, both of which were required under
the Federal Regulations.

     Additionally, we note that Mr. Autry completed a “MAINTENANCE/MECHANIC
INTERVIEW CHECK LIST,” which contained the following question and answer:

             CDL:              Do you understand that your employment is contingent upon
                               your maintaining a current Commercial Drivers License?

                               Yes           No
                                T




         3
                                                        49 C FR 383 .3

§ 383.3 Applicability.

         (a) The rules in this part apply to every person who operates a comm ercial motor vehicle (CM V) in interstate,
foreign, or intrastate com merce, to all emp loyers of su ch persons, and to all States.

                                                        49 C FR 383 .5

§ 383.5 D efinitions.

As u sed in this part:

Comm erce means (a) any trade, traffic or transportation within the jurisdiction of the United States b etween a place in
a State and a place outside of such State, including a place outside of the United States and (b) trade, traffic, and
transportation in the U nited States w hich affects any trade, traffic, an d tran sportation described in paragrap h (a) o f this
definition.

                                                              -4-
       We agree with his contention that there is substantial material evidence that Mr. Autry was
released to return to work by Dr. Daniel R. Smith, a premier authority in the area of Narcolepsy.
However, it seems to us that the doctor would only be able to assess whether Mr. Autry was
physically able, and not whether he was legally able.

       It is clear under the Code of Federal Regulations that Mr. Autry could not drive a commercial
vehicle without a current driver’s license, nor without a current medical examiner’s certificate that
he was qualified.

                                          49 CFR 383.23

         § 383.23 Commercial driver’s license.

                 ....

         (2) Effective April 1, 1992, except as provided in paragraph (b) of this section, no
         person shall operate a commercial motor vehicle unless such person possesses a
         CDL which meets the standards contained in subpart J of this part, issued by
         his/her State or jurisdiction of domicile.

                                          49 CFR 391.41

         § 391.41 Physical qualifications for drivers.

                 (a) A person shall not drive a commercial motor vehicle unless he/she is
         physically qualified to do so and, except as provided in § 391.67, has on his/her
         person the original, or a photographic copy, of a medical examiner’s certificate
         that he/she is physically qualified to drive a commercial motor vehicle.


        We also note, as did the Chancellor, that there is a procedure for Mr. Autry to challenge the
denial of his medical certificate by Dr. McKinley Lundy, a qualified medical examiner. However,
he chose not to avail himself of this procedure.

        In conclusion, we reiterate that we are aware that Mr. Autry did not drive a bus on public
roads, but only within the shop and around the building where he was employed. While the danger
he might pose would certainly be greater if he operated a commercial vehicle on public roads, his
condition nevertheless could prove a danger to fellow employees and to himself.

      For the foregoing reasons the judgment of the Chancery Court is affirmed and the cause
remanded for collection of costs below. Costs of appeal are adjudged against Gerald D. Autry.



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_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE




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