RENDERED: November 15, 1996; 10:00 a.m.

NOT TO BE PUBLISHED

NO. 95-CA-000742-MR RUBY A. CALLOWAY APPELLANT v. APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE HUGH ROARK, JUDGE

ACTION NO. 93-CI-000911

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; and FLINT INK - CDR DIVISION APPELLEES

OPINION AFFIRMING

* * * * * * * *

BEFORE: COMBS, EMBERTON and KNOPF, Judges. EMBERTON, JUDGE. Ruby A. Calloway brings this appeal pursuant to Ky. Rev. Stat. (KRS) 341.450(4), from a decision of the Hardin Circuit Court entered February 21, 1995, affirming the June 4, 1993 order of the Kentucky Unemployment Insurance Commission upholding the denial of unemployment benefits. We affirm.

Calloway was employed by Flint Ink - CDR Division where she worked as a lab technician at the company's plant in-2- Elizabethtown, Kentucky. In 1991, she was diagnosed as suffering from carpal tunnel syndrome. She was treated by Dr. Joseph Kutz who began seeing her on a regular basis on June 28, 1991. He recommended and imposed various levels of restriction or light duty in the ensuing months. On July 31, 1992, Calloway was seen by Kutz who, on this occasion, prepared a "Daily Control Sheet" for his records and to advise of his recommended restrictions.

According to the testimony of Doug Gebler, the technical manager at Flint Ink, he received Calloway's July 31, 1992, Control Sheet and became concerned by apparent inconsistencies on the document, i.e., a recommendation for "onehanded work;" "restricted" at work "for 2 more months (the "2" purportedly resembling a "Z" or "7"); and, "continue one more month" on light duty. In an effort to resolve the ambiguity, he met with Calloway to discuss the situation and to review the carbon copy of the report she retained. Calloway's retained copy likewise contained the inconsistent recommendation and restriction. Thereafter, Dr. Kutz's original Daily Control Sheet was obtained and reviewed. The original, unlike the employer and employee copies, reflected only a one-month restriction. Although she denied altering the report, Calloway was discharged based on her employer's belief that she had falsified her medical records in an attempt to show more limitations than actually imposed by the doctor and thereby obtain limited duty assignments.

The Unemployment Insurance Commission initially determined Calloway was eligible for unemployment compensation. Flint Ink appealed the determination. Hearings were held by a referee on January 13, 1993 and March 15, 1993. Thereafter, the referee rendered a decision setting aside the initial determination of November 6, 1992, and held that Calloway was discharged for misconduct connected with her work and was therefore disqualified from receiving benefits. The referee's decision was based on the following: The weight of evidence in this case shows that claimant did falsify her July 31, 1992, medical statement to show more limitations and restrictions than imposed by Dr. Kutz. Claimant's actions were in willful disregard for her employer's interest and the resulting discharge was for misconduct connected with the work.

On June 4, 1993, the Commission affirmed the referee's decision providing:

Although the record reflects conflicting testimony, we find there was, in light of all the evidence, substantial evidence to support the decision of the referee. As trier of the facts, the referee was in a superior position to evaluate the situation, the conduct and demeanor of each witness and to consider the credibility of the witness.

Following judicial review pursuant to KRS 341.450(1), the Hardin Circuit Court affirmed the decision.

We point out, as did the circuit court, that a reviewing court may not substitute its judgment for that of the Commission and must affirm findings supported by substantial evidence. Kentucky Unemployment Insurance Commission v. Springer, Ky., 437 S.W.2d 501 (1969). Moreover, it is fundamental that adjudging the credibility of witnesses is within the exclusive province of the referee or hearing officer. Energy Regulatory Commission v. Kentucky Power Company, Ky. App., 605 S.W.2d 46 (1980).

Applying the appropriate standards of review, we too affirm the decision. The document submitted by Calloway read "restricted for 2 more months," "one-handed work" and "continue one more month on light duty." In contrast, the statement supplied directly from Kutz's office did not contain a notation limiting Calloway to one-handed work, nor did it show her to be restricted for two more months. The record reveals inconsistent explanations offered by Calloway: on one hand she claims she convinced her doctor to change the statement to add the longer restriction period; on the other hand, she suggests some unknown person must have made the changes when she inadvertently left the report on her supervisor's desk. The referee did not believe Calloway; instead he concluded the weight of the evidence demonstrated Calloway falsified her statement to show more restrictions than imposed by Dr. Kutz. As did both the Commission and the circuit court, we have reviewed the record and conclude that there was substantial evidence to support the referee's finding.

KRS 341.570 provides in pertinent part:

(1) A worker shall be disqualified from receiving benefits for the duration of any period of unemployment with respect to which:

. . . . (b) He has been discharged for misconduct or dishonesty connected with his most recent work. . . .

The evidence reveals that the employer consistently accommodated Calloway's medical condition and the consequential doctor imposed restrictions by relieving her of certain job tasks. Those tasks were reassigned or otherwise performed by other employees. Certainly misrepresenting or falsifying information regarding her medical condition in an effort to receive this benefit demonstrates a willful disregard of her employer's interests and is, in our opinion, misconduct and dishonesty as defined in KRS 341.370(2). As such it falls within the purview of KRS 341.470(1)(b). See e.g., Unemployment Insurance Commission v. Goslin, Ky., 756 S.W.2d 464 (1988); Kentucky Unemployment Insurance Commission v. King, Ky. App., 657 S.W.2d 250 (1983).

The conclusion that Calloway was terminated for workrelated misconduct being based on substantial evidence, is affirmed. Consequently, Calloway was properly disqualified from receiving unemployment insurance benefits. KRS 341.370(1)(b).

The decision of the Hardin Circuit Court is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT: Bixler W. Howland Louisville, Kentucky

BRIEF FOR APPELLEE FLINT INK - CDR DIVISION:

William P. Swain Mary Ann Kiwala Louisville, Kentucky

BRIEF FOR APPELLEE KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION:

Timothy A. Sturgill WORKFORCE DEVELOPMENT CABINET Louisville, Kentucky