Opinion
C.A. No. 99A-12-001-CG.
Submitted: January 17, 2001.
Decided: January 25, 2001.
On Appeal from the Unemployment Insurance Appeal Board. Affirmed.
Eric L. Episcopo, New Castle County Law Department, New Castle, Delaware, Attorney for Appellant.
Joseph M. Bernstein, Wilmington, Delaware, Attorney for Appellee, Daniel Tharby.
ORDER
This day of January, 2001, upon review of the papers filed by the parties in this case and the record of the proceedings below, it appears that:
(1) Appellee and claimant below, Daniel Tharby, worked for Appellant and employer below, New Castle County, as a T.V. router from May 1, 1989 until June 9, 1999. On February 6, 1999, Tharby was involved in an automobile accident while on duty. On June 9, 1999, New Castle County suspended Tharby, pending a review of the February 6 accident. New Castle County claimed that Tharby had misrepresented the disability caused by his February 6 accident. Tharby filed a claim for unemployment compensation, effective June 6, 1999, with the Delaware Department of Labor, Division of Unemployment Insurance. On June 25, 1999, a Claims Deputy determined that Tharby was eligible for benefits.
(2) On July 6, 1999, New Castle County appealed the decision of the Claims Deputy. On July 28, 1999 and August 18, 1999, an Appeals Referee held a hearing to consider New Castle County's appeal. In a decision dated October 1, 1999, the Appeals Referee reversed the decision of the Claims Deputy and determined that Tharby had been discharged with just cause in connection with his work.
(3) At the Appeals Referee hearing, New Castle County argued that Tharby had misrepresented his medical condition and therefore was discharged according to county work rules. In support of that argument, New Castle County presented evidence that examining physicians had released Tharby to work a full eight hour day with no restrictions on May 17, 1999. New Castle County advised Tharby to report for work on April 23, 1999 and May 17, 1999. At a meeting on May 20, 1999, Tharby advised New Castle County that he would adhere to his treating physician's opinion, which limited his work hours to six hours per day and placed restrictions on his work activities. New Castle County also commenced surveillance of Tharby in February 1999, which lasted until May 1999. New Castle County submitted as evidence a videotape of Tharby's actions during that time period, showing him engaged in various strenuous physical activities.
(4) Tharby argued that his treating physician was best qualified to evaluate his ability to return to work full-time without restrictions and denied misrepresenting his medical condition. Tharby stated that his work involved heavy lifting and that he was unable to perform such activities on a full-time basis.
(5) The Appeals Referee determined that Tharby had been discharged from his work for just cause in relation to his work. In support of his decision, the Appeals
Referee stated:
Several of the medical reports offered as evidence by the employer support the employer's position that the claimant became able to work on a full-time basis, without restrictions, on about April 22, 1999. The surveillance shows that the claimant engaged in activity in which he vigorously shoveled mulch, or lifted weight which a person with ailing back symptom would not perform. The employer has satisfied the burden of proof to demonstrate that the claimant misrepresented his medical condition as it relates to the performance of his duties.
(6) Tharby appealed the decision of the Appeals Referee to the Unemployment Insurance Appeal Board. On November 3, 1999, the Board held a hearing to consider the merits of Tharby's appeal. At the Board hearing, Tharby presented additional evidence in the form of several notes from his treating physician. Tharby pointed out that the notes placed no restrictions on his activities; rather, the notes limit the number of hours he was permitted to work.
(7) On November 12, 1999, the Board issued its written decision reversing the Appeals Referee's determination. The Board found that Tharby was discharged without just cause in connection with his work and therefore eligible for benefits. The Board explained its reversal:
Although this case may involve complicated questions in other contexts, in the context of unemployment law, the question is a simple one. Can a claimant engage in willful or wanton misconduct if he follows his physician's directions? The claimant's treating physician had limited him to working six hours a day without limiting his duties in any way. There is no explanation of why the claimant could work only six hours a day. The employer appears to believe that the time limitations are caused by the claimant's inability to do certain tasks. The doctor, however, does not say this. Thus all the surveillance cannot prove that the claimant should have no restrictions on his ability to perform physical tasks. The Board concludes that the claimant is not engaged in willful or wanton misconduct by following his physician's advice. The employer may have been justified in discharging the claimant because of an agreement to abide by a third physician. For purposes of unemployment benefits, however, the failure to return to eight hours of work in the circumstances of this case, is not willful or wanton misconduct.
(8) New Castle County has now appealed the decision of the Board awarding Tharby benefits to this Court pursuant to 19 Del. C. § 3323. In its Notice of Appeal, New Castle County argues that the Board improperly determined that Tharby was entitled to unemployment benefits and improperly determined that Tharby was discharged without just cause. Neither party has submitted further argument in support of its position. Therefore, the Court will consider the merits of the appeal in light of the record below.
(9) This Courts role, in reviewing a decision of the Board, is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Unemployment Ins. Appeal Bd. v. Duncan, Del. Supr., 337 A.2d 308 (1975). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Indus. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1992).
(10) Under 19 Del. C. § 3315(2), an individual is disqualified from receiving unemployment insurance benefits where the individual has been discharged for just cause in connection with his or her work. "Just cause" is defined as a "wilful or wanton act in violation of either the employer's interest, or the employee's duties, or of the employee's expected standard of conduct." Abex Corp. v. Todd, Del. Super., 235 A.2d 271, 272 (1967).
(11) As set forth above, the Board determined that Tharby did not engage in Wilful or wanton misconduct by following his physician's advice to restrict his work hours. Upon review of the record, the Court finds that the Board's decision is supported by substantial evidence and that the Board did not err as a matter of law in determining that New Castle County discharged Tharby without just cause in connection with his work.
Therefore, based upon the reasoning set forth above, the decision of the Board is hereby AFFIRMED.
IT IS SO ORDERED.