RENDERED: May 16, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
95-CA-1174-MR COMMONWEALTH OF KENTUCKY, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and UNITED PARCEL SERVICE APPELLANTS
APPEAL FROM TAYLOR CIRCUIT COURT v. HONORABLE WILLIAM M. HALL, JUDGE
ACTION NO. 94-CI-278
KAREN KARNES APPELLEE
OPINION AFFIRMING
* * * * * * * * BEFORE: WILHOIT, Chief Judge; GUIDUGLI and MILLER, Judges.
WILHOIT, CHIEF JUDGE. This appeal is from the order of the Taylor Circuit Court reversing an order of the appellant, Kentucky Unemployment Insurance Commission (KUIC), which had denied the appellee unemployment benefits because it found that she had been discharged from her employment by the appellee, United Parcel Service (UPS), for misconduct connected with her work.
The appellee began work for UPS in 1979 as a package car driver. She was discharged on June 23, 1994, for violation of the company policy which required discharge of an employee involved in three "avoidable" vehicular accidents within any -2-
nine-month period. From August 10, 1993, through May 23, 1994, the appellee was involved in four auto accidents while on the job.
On August 10, 1993, the appellant backed into an overhead door of a UPS client, causing property damage to the door. The accident was deemed "avoidable" by UPS officials.
On September 16, 1993, she collided with a parked vehicle while exiting a side street. Again, UPS officials determined the accident was "avoidable" and issued a warning to the appellee regarding the company's policy. The appellee was involved in a third accident on December 23, 1993, when she lost control of the vehicle as a result of ice on the road. She was discharged due to the seriousness of the accident, but the discharge was subsequently amended to a suspension. The appellee returned to work under the conditions that she undergo certain safety training and that she avoid another "avoidable" accident within the following nine-month period.
On May 23, 1994, the appellee was involved in a fourth accident when she rear-ended an auto that had suddenly stopped in front of her package car. UPS officials concluded that this accident was "avoidable" and discharged the appellee on June 23, 1994.
The appellee sought unemployment benefits. A referee concluded that her discharge was the result of misconduct connected with her employment, disqualifying her from receiving
benefits. She appealed the decision to the KUIC. The Commission affirmed the referee's decision, finding as follows:
The evidence in this case clearly shows the claimant to be negligent in the performance of her duties. Her actions resulted in the injury of others, and in her employer being liable for several thousand dollars in damages. The employer attempted, on several occasions, to aid the claimant by giving her additional safety training after each accident occurred and an eight hour safety training course after she was allowed to return to work following her suspension. The employer's efforts could not overcome the claimant's gross negligence. The claimant was discharged for work related misconduct and is disqualified from receiving benefits. The employer's reserve account is relieved of charges on the basis of the separation issue.
Relying upon KRS 341.370(1)(b) and KRS 341.370(6), the Commission denied benefits, specifically finding that she was discharged due to her "gross negligence," which amounted to misconduct.
The appellee initiated this action in the Taylor Circuit Court seeking relief from the KUIC's decision. The trial court set aside the KUIC's order, concluding that the "[appellee's] conduct did not constitute work-related misconduct as defined by KRS 341.370(6); and her disqualification from unemployment benefits by the Kentucky Unemployment Insurance Commission was improper inasmuch as the [appellee's] involvement in automobile accidents while employed as a driver are not indicia of misconduct." This appeal followed.
The appellants' primary contention is that the trial court substituted its judgment for that of the fact finder as
opposed to simply reviewing the administrative decision to determine if substantial evidence supported it.
It is well settled in Kentucky law that an administrative board's decision will not be disturbed so long as its findings of fact are supported by substantial evidence, and the agency applied the correct rule of law. See Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299, 302 (1963); see also Kentucky Unemployment Ins. Comm'n v. Murphy, Ky., 539 S.W.2d 293, 294 (1976).
In pertinent part, KRS 341.370 provides as follows: (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, or from any work which occurred after the first day of the worker's base period and which last preceded his most recent work, but legitimate activity in connection with labor organizations or failure to join a company union shall not be construed as misconduct; or
Furthermore, KRS 341.370(6) defines "discharge for misconduct" stating that "[d]ischarge for misconduct" as used in this section shall include, but not be limited to, separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer; unsatisfactory attendance if the worker cannot show good cause for absences or tardiness; damaging the employer's property through gross negligence; refusing to obey reasonable instructions; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working
hours; conduct endangering safety of self or co-workers; and incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction, which results in missing at least five (5) days work.
In this case, the KUIC based its decision upon the finding that the appellee was grossly negligent under the terms of KRS 342.370(6). "Gross negligence" is a term of art in Kentucky law and is defined as the failure to exercise slight care. See Shearer v. Hall, Ky., 399 S.W.2d 701 (1965); see also Donegan v. Beech Bend Raceway Park, Inc., 894 F. 2d 205 (6th Cir. 1990).
Upon review of the record, we cannot say that there exists substantial evidence showing that the appellee's actions amounted to gross negligence. The referee was presented almost no evidence concerning the degree of the lack of care exercised by the appellee on the occasion of her accidents. What evidence there was as to her fault consisted primarily of testimony by UPS's witness as to which of the appellee's accidents it considered avoidable or unavoidable. There was not substantial evidence of gross negligence. See Brown, supra; see also Shamrock Coal Co., Inc. v. Taylor, Ky. App., 697 S.W.2d 952 (1985). The fact that a number of accidents occurred does not necessarily establish "misconduct" for purposes of KRS 341.370. While repeated acts of negligence in executing one's employment might constitute "misconduct," the Commission did not make such a ruling here but concluded that the appellee was guilty of gross negligence.
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The decision of the Taylor Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT KUIC: Beverly Haverstock General Counsel Randall K. Justice, Counsel Workforce Development Cabinet Frankfort, KY
BRIEF FOR APPELLANT UNITED PARCEL SERVICE:
David B. Sandler Westfall, Talbott & Woods Louisville, KY
BRIEF FOR APPELLEE: Theodore H. Lavit Stephen B. Humphress Theodore H. Lavit & Assoc. P.S.C. Lebanon, KY