                                                                                                  08/27/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        May 23, 2018 Session

         HAMPTON CRANE SERVICE, INC. v. BURNS PHILLIPS,
       COMMISSIONER OF TENNESSEE DEPARTMENT OF LABOR &
               WORKFORCE DEVELOPMENT, ET AL.

                     Appeal from the Chancery Court for Sumner County
                       No. 2017-CV-55 Louis W. Oliver, Chancellor
                          ___________________________________

                                 No. M2017-02213-COA-R3-CV
                             ___________________________________


Employer appeals from the agency’s decision to award unemployment benefits to an
employee. Because the record contains substantial and material evidence to support the
agency’s decision, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.

Daniel C. Todd, Nashville, Tennessee, for the appellant, Hampton Crane Service, Inc.

Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant
Attorney General, for the appellee, Burns Phillips, Commissioner of Tennessee
Department of Labor & Workforce Development, and Charles M. Jones

                                   MEMORANDUM OPINION1



1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                                       Background

       This case involves the award of unemployment benefits to Respondent/Appellee
Charles M. Jones (“Mr. Jones” or “Claimant”) after the termination of his employment by
Petitioner/Appellant Hampton Crane Service, Inc. (“Hampton Crane” or “Employer”).
Because Mr. Jones was the only witness to testify at any evidentiary hearing in this case,
the facts are largely undisputed.

        Mr. Jones was employed at Hampton Crane as a truck driver from December 2010
until his termination on July 27, 2016. In January 2013, Mr. Jones was in a work-related
accident. He reported the accident to Hampton Crane and pursued a workers’
compensation claim due to back and hip pain. Shortly thereafter, Mr. Jones began
experiencing problems with his eyesight. He then went to a private medical doctor who
suggested that the eye problems may have resulted from the January 2013 work-related
accident. Mr. Jones immediately notified Hampton Crane of his vision issues, informing
Hampton Crane’s secretary-treasurer that he was experiencing double vision. According
to later testimony from Mr. Jones, he often discussed his vision issues with Hampton
Crane beginning in 2013.

       In April 2013, Hampton Crane, through its workers’ compensation insurance
provider, requested that Mr. Jones see an independent physician for an examination of his
vision. Of the panel provided, Mr. Jones selected ophthalmologist Dr. Edwin Rice. Mr.
Jones saw Dr. Rice on May 24, 2013 and later underwent an MRI in July 2013. In
October 2013, Dr. Rice issued a final report diagnosing Mr. Jones with double vision and
assigned him a permanent impairment rating of two percent; Dr. Rice advised that the
diagnosis would not keep Mr. Jones from doing his job at Hampton Crane, as Mr. Jones
was “coping” with the issues he was experiencing.

        In the meantime, on May 9, 2013, Mr. Jones attended his biannual medical
examination required by the Department of Transportation (“DOT”) to recertify his
commercial driver’s license. Mr. Jones testified that he reported that he had “double
vision problems” to the examiner; however, in the medical history section of the
examination report, the portion asking if he had eye disorders in the past five years was
checked “No.” He also certified the report as true with his signature. Mr. Jones later
testified that although he read the form and signed that the contents were true, he did not
fill out the form; instead, Mr. Jones testified that a staff member of the examiner must
have filled out the form. On April 29, 2015, Mr. Jones attended another DOT physical in
which he again checked “No” for an eye disorder or impaired vision. He also certified
the examination report was true by signature. Mr. Jones later testified that he did fill out
and sign this form, which he completed to match the form from his 2013 physical.

      In November 2015, Mr. Jones attended an independent medical evaluation with
Dr. Michael R. Politzer as a part of his workers’ compensation claim. Mr. Jones
                                       -2-
disclosed to Dr. Politzer that he had been suffering from double vision since the January
2013 accident. Mr. Jones also informed Dr. Politzer that he was also having issues with
depth perception. As a result of the examination, Dr. Politzer assigned Mr. Jones an
impairment rating of twenty percent and advised that Mr. Jones avoid all activities
relating to driving for work or pleasure. On November 30, 2015, counsel for Mr. Jones
forwarded Dr. Politzer’s report to Hampton Crane’s workers’ compensation insurance
provider. No one mentioned the report to Mr. Jones until mid-July 2016, when Hampton
Crane prohibited Mr. Jones from driving company vehicles.2 Mr. Jones was thereafter
confined to work in the shop, such as sweeping the floors and washing the trucks. Two
weeks later, Mr. Jones rejected Hampton Crane’s settlement offer for his workers’
compensation claim. The next day, July 27, 2016, Hampton Crane notified Mr. Jones
that he was terminated due to giving false information to the medical examiners.

       On July 31, 2016, Mr. Jones filed a claim for unemployment benefits with the
Tennessee Department of Labor and Workforce Development (“the Department”). On
November 14, 2016, the Department issued its Agency Decision that Mr. Jones was
ineligible to receive unemployment benefits because he was terminated due to
misconduct. Mr. Jones appealed this decision to the Appeals Tribunal, which held
hearings on December 20, 2016, and January 13, 2017. Mr. Jones was the sole witness.
The Appeals Tribunal reversed the Agency Decision finding that Mr. Jones was not
discharged due to misconduct and thus eligible for unemployment benefits. Hampton
Crane then appealed this decision to the Commissioner’s Designee, and the
Commissioner’s Designee affirmed the Appeals Tribunal’s decision. Hampton Crane
then filed a petition for judicial review in the chancery court on May 5, 2017. The
chancery court heard Hampton Crane’s petition on August 29, 2017, and affirmed the
Commissioner’s Designee’s decision. Hampton Crane appeals the chancery court’s
decision.

                                     Standard of Review

       The same standard of review applies to this Court as applied in the trial court. See
Armstrong v. Neel, 725 S.W.2d 953, 956 n.1 (Tenn. Ct. App. 1986) (“The appellate
courts use the same review standards employed by the trial courts.”). As such, our
review is as follows:

       The chancellor or [the Court of Appeals] may affirm the decision of the
       commissioner 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:


       2
        Dr. Politzer’s deposition was taken in connection with the workers’ compensation claim in
March 2016.
                                              -3-
             (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.

      (3) In determining the substantiality of evidence, the chancellor shall take
      into account whatever in the record fairly detracts from its weight, but the
      chancellor shall not substitute the chancellor's judgment for that of the
      commissioner’s designee as to the weight of the evidence on questions of
      fact. No decision of the commissioner’s designee shall be reversed,
      remanded or modified by the chancellor, unless for errors that affect the
      merits of the final decision of the commissioner’s designee. The petition for
      judicial review shall be heard by the chancellor either at term time or
      vacation as a matter of right, any other statute of this state to the contrary
      notwithstanding.

Tenn. Code Ann. § 50-7-304(i)(2). The standard applicable in this case is therefore “more
narrow than the broad standard employed in other civil appeals.” Ruff v. Neeley, No.
W2006-01192-COA-R3-CV, 2006 WL 3734641, at *6 (Tenn. Ct. App. Dec. 20, 2006)
(citing Wayne County v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279
(Tenn. Ct. App. 1988)).

       “A decision of an administrative agency is arbitrary or capricious when there is no
substantial and material evidence supporting the decision.” StarLink Logistics Inc. v.
ACC, LLC, 494 S.W.3d 659, 669 (Tenn. 2016) (citing Pittman v. City of Memphis, 360
S.W.3d 382, 389 (Tenn.Ct.App.2011)) (involving a different statute that also applies the
substantial and material evidence standard). This burden is not “onerous.” Roberts v.
Traughber, 844 S.W.2d 192, 196 (Tenn. Ct. App. 1991) (“[T]he burden of producing
substantial and material evidence is not an onerous one.”)). “[S]ubstantial and material
evidence consists of relevant evidence which a reasonable mind might accept to support a
rational conclusion and which furnishes a reasonably sound basis for the action being
reviewed.” Armstrong, 725 S.W.2d at 955 n.2. “[I]t is less than a preponderance of the
evidence, . . . and more than a ‘scintilla or glimmer’ of evidence[.]” StarLink Logistics,
494 S.W.3d at 669. (internal citation omitted) (quoting Wayne Cnty., 756 S.W.2d at 280).

       Tennessee’s unemployment statutes are “construed liberally in the employee’s
favor,” while the disqualification provisions are construed narrowly. Armstrong, 725
S.W.2d at 955 (citing Weaver v. Wallace, 565 S.W.2d 867, 869–70 (Tenn. 1978)). “The
employer has the burden of proving that an employee should be disqualified from
receiving unemployment compensation benefits.” Id. (citing Weaver, 565 S.W.2d at 869).
                                          -4-
                                       Discussion

       Here, Hampton Crane asserts that the decision to award Mr. Jones unemployment
benefits was arbitrary, capricious, and unsupported by substantial and material evidence.
Rather, Hampton Crane contends that it met its burden to show that Mr. Jones committed
“misconduct” such that he is disqualified from receiving unemployment benefits. We
agree that an employee/claimant whose employment is terminated due to “misconduct
connected with the claimant’s work” is not entitled to unemployment benefits. See Tenn.
Code Ann. § 50-7-303(a)(2)(A) (providing that a claimant is not entitled to
unemployment benefits if the claimant was discharged from his or her most recent
employment for misconduct). Misconduct sufficient to disqualify an employee from
unemployment benefits is defined by Tennessee Code Annotated section 50-7-303(b)(3):

        (A) “Misconduct” includes, but is not limited to, the following conduct by
            a claimant:

             (i) Conscious disregard of the rights or interests of the employer;
             (ii) Deliberate violations or disregard of reasonable standards of
             behavior that the employer expects of an employee;
             (iii) Carelessness or negligence of such a degree or recurrence to
             show an intentional or substantial disregard of the employer’s
             interest or to manifest equal culpability, wrongful intent or shows an
             intentional and substantial disregard of the employer’s interests or of
             the employee’s duties and obligations to the employee’s employer;
             (iv) Deliberate disregard of a written attendance policy and the
             discharge is in compliance with such policy;
             (v) A knowing violation of a regulation of this state by an employee
             of an employer licensed by this state, which violation would cause
             the employer to be sanctioned or have the employer’s license
             revoked or suspended by this state; or
             (vi) A violation of an employer’s rule, unless the claimant can
             demonstrate that:
             (a) The claimant did not know, and could not reasonably know, of
             the rule’s requirements; or
             (b) The rule is unlawful or not reasonably related to the job
             environment and performance;

      (B) “Misconduct” also includes any conduct by a claimant involving
      dishonesty arising out of the claimant’s employment that constitutes an
      essential element of a crime for which the claimant was convicted;
      (C) “Misconduct” also includes any conduct constituting a criminal offense
      for which the claimant has been convicted or charged that:
                                          -5-
             (i) Involves dishonesty arising out of the claimant’s employment; or
             (ii) Was committed while the claimant was acting within the scope
             of employment; and

      (D) “Misconduct” does not include:

             (1) Inefficiency, or failure to perform well as the result of inability or
             incapacity;
             (2) Inadvertence or ordinary negligence in isolated instances; or
             (3) Good faith errors in judgment or discretion . . . .

In determining that Mr. Jones’s employment was not terminated for misconduct, the
Commissioner’s Designee made the following conclusions:

      The issue involved in this case is whether or not the Claimant’s discharge
      was for work connected misconduct under T.C.A. 50-7-303 (a)(2). The
      evidence is clear that the Claimant was injured in a work related accident.
      He reported the accident to the Employer and any effects he was feeling as
      a result of the accident to the Employer as soon as he became aware of
      those effects.

      There seems to have been a slight delay about reporting the vision problems
      to the Employer between the date of the accident in January of 2013 and the
      Claimant reporting the vision problems in April of 2013, but the evidence is
      sufficient to explain that delay. The on-set of the vision problems the
      Claimant did not initially understand might be related to the accident until
      he was advised of such by an eye doctor and upon being told by a medical
      professional that his vision problems might be related to the accident, he
      immediately reported that to the Employer.

      It is very obvious that there is a workman’s compensation claim on-going
      as a result of the accident and that the parties are, at least at the time of the
      Appeals Tribunal hearing, far apart in their positions. The problems faced
      by the Appeals Tribunal and also by the Commissioner’s Designee is to try
      to separate as best as can be done, the issue of the workman’s compensation
      case from the case at hand here which is whether or not the Claimant’s
      actions in some way amounted to work connected misconduct under T.C.A.
      50-7-303 (a)(2) such as to deny this claim for benefits.

      The Employer has argued that the Claimant falsified information to an
      independent DOT medical examiner resulting in him obtain[ing] a DOT
      health certificate. The Claimant had denied falsifying such information and
                                          -6-
      there is some indication that even absent from what the Claimant may or
      may not have told the DOT medical examiner, that the decision to issue the
      health certificate in this case was based on a physical examination of his
      vision.

      At the basis for this dispute is the dispute between the Employer’s medical
      examiner who found minimal visual impairment and did not find that the
      Claimant was unable to drive and the Claimant’s medical examiner who
      found more substantial visual impairment and a recommendation that the
      Claimant not drive at all. In reaching the decision to approve this claim, the
      Appeals Tribunal did find that the medical provider who examined the
      Claimant at the attorney’s request did not do so until sometime after the
      two (2) DOT physicals mentioned had already been taken. At the time he
      took those physicals, the Claimant was being treated by the eye doctor to
      whom he had been sent by the Employer. That doctor did not find him
      unable to drive and based on that decision and his own personal opinions,
      the Claimant felt he was able to drive. The Commissioner’s Designee
      agrees with the Appeals Tribunal that the evidence is not sufficient to show
      that the Claimant committed an act that amounted to work connected
      misconduct under T.C.A. 50-7-303 (a)(2).

      Based on a review of the entire record, including recordings of any prior
      hearings and documented records in this case, the Commissioner’s
      Designee hereby finds that the Appeals Tribunal correctly found the facts
      and applied the law. The Commissioner’s Designee hereby adopts their
      findings of fact and application of the law. The decision of the Appeals
      Tribunal approving this claim is affirmed.

        Hampton Crane contends that the Commissioner’s Designee’s conclusions were
without material evidence because Mr. Jones admitted that he falsified his medical
history at the time of his two DOT medical examinations. According to Hampton Crane,
Mr. Jones’s actions therefore violated 49 U.S.C. § 521 (b)(2)(B), which provides a civil
penalty for violating record-keeping requirements in the commercial motor vehicle safety
context. See 49 U.S.C. § 521 (b)(2)(B)(ii) (providing a penalty for those that knowingly
falsify a required report or record).

       In contrast, the Department argues that the decision of the Commissioner’s
Designee should be upheld because the largely undisputed evidence shows that Mr. Jones
informed both his medical examiners and his employers of his vision issues as early as
his May 2013 physical. We agree. Here, the undisputed evidence shows that although Mr.
Jones did sign forms related to his 2013 and 2015 DOT medical examinations that
contained inaccurate information, the inaccuracies were, at most, the result of mere

                                          -7-
negligence. See Tenn. Code Ann. § 50-7-303(b)(3)(d)(stating that misconduct does not
include “ordinary negligence in isolated instances”).

       According to the undisputed evidence, Mr. Jones informed a health professional
during his May 9, 2013 DOT physical of his vision problems. During this examination,
Mr. Jones underwent a vision test, which he undisputedly passed. Thus, Hampton Crane’s
assertion that “Mr. Jones’s failure to disclose his eye problems prevented the medical
examiner from assessing Mr. Jones’s medical fitness” is simply unsupported by the
evidence in the record. Instead, the medical examiner was informed of Mr. Jones’s vision
problems, performed an eye exam on Mr. Jones, and ultimately recertified Mr. Jones’s
commercial driver’s license.

       Moreover, the form at issue was not completed by Mr. Jones, but by a third party
associated with the DOT medical examination. Mr. Jones thereafter signed the form,
which stated that he had no vision issues. Mr. Jones did complete the form related to his
2015 physical. By the time of his April 2015 physical, however, Mr. Jones had been
cleared to drive by Dr. Rice, who had assigned Mr. Jones only a two percent impairment
rating with no restrictions on his ability to drive. Additionally, Mr. Jones testified that he
completed the form to conform to the 2013 form. At the time of the completion of this
form, it appears that Mr. Jones was under the reasonable belief that he had no vision
issues sufficient to disqualify him from driving a commercial vehicle. During this
examination, Mr. Jones again underwent and passed a vision test. At the time that Mr.
Jones signed both forms, no medical professional had ever informed Mr. Jones that he
had vision problems sufficient to prevent his employment as a commercial truck driver.

       Additionally, the evidence is undisputed that Mr. Jones informed his employer of
his vision issues in 2013, well before the termination of his employment. In fact,
Hampton Crane received Dr. Politzer’s report indicating that Mr. Jones should not drive
in November 2015, but waited over seven months before prohibiting Mr. Jones from
operating company vehicles. Mr. Jones’s employment was thereafter terminated
approximately two weeks later. This report, along with the undisputed testimony that Mr.
Jones informed Hampton Crane of his vision problems years earlier, show that Hampton
Crane had knowledge of the inaccuracies reported on the DOT physical forms well
before the termination. Rather than take action promptly following this knowledge,
Hampton Crane chose to terminate Mr. Jones’s employment the very next day following
the rejection of a workers’ compensation settlement offer. The temporal proximity
between Hampton Crane’s knowledge of the purported “falsification” of the medical
forms and the termination of Mr. Jones’s employment is therefore tenuous.

      In sum, Mr. Jones signed forms associated with two DOT physicals containing
admittedly inaccurate information. In connection with the signing of both forms,
however, Mr. Jones informed the medical professionals of his vision problems, submitted
to and passed vision tests administered during the DOT physicals, and had not been
                                        -8-
informed by any medical professionals that his vision problems prevented him from
operating a commercial vehicle. Indeed, at the time that Mr. Jones filled out and signed
the April 2015 form, he had been medically cleared to drive commercial vehicles by a
physician chosen by Hampton Crane. Moreover, throughout this time, Hampton Crane
was informed of Mr. Jones’s vision problems. As such, the inaccuracies in the two DOT
physical forms appear to be isolated instances of negligence, rather than deliberate or
knowing instances of misconduct. See generally Tenn. Code Ann. § 50-7-303(b)(3)
(defining misconduct). Under these circumstances, we must conclude that the
Commissioner’s Designee’s decision that the termination was not the result of
misconduct is supported by material evidence and neither arbitrary nor capricious.

                                      Conclusion

        The judgment of the Chancery Court of Sumner County is affirmed and this cause
is remanded for all further proceedings as may be necessary and consistent with this
Opinion. Costs of this appeal are assessed against Appellant Hampton Crane Service,
Inc., for which execution may issue if necessary.


                                               _________________________________
                                               J. STEVEN STAFFORD, JUDGE




                                         -9-
