RENDERED: February 12, 1999; 10:00 a.m.

NOT TO BE PUBLISHED

C o m m o n w e a l t h O f K e n t u c k y

C o u r t O f A pp e a l s

NO. 1998-CA-000304-MR

LESLEY M. WEST APPELLANT

APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE CHARLES E. LOWE, JR., JUDGE

ACTION NO. 97-CI-1254

COMMONWEALTH OF KENTUCKY, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND ROGERS PETROLEUM SERVICES, INC. APPELLEES

OPINION AFFIRMING ** ** ** ** **

BEFORE: DYCHE, EMBERTON AND GARDNER, JUDGES.

GARDNER, JUDGE: Lesley M. West (West) appeals from an opinion and order of the Pike Circuit affirming a decision of the Kentucky Unemployment Insurance Commission (the Commission). We affirm.

The facts are uncontroverted. West began his employment as a truck driver for Rogers Petroleum Services, Inc. (Rogers) in the 1970s. His primary responsibility was delivering fuel to Rogers' customers. On April 9, 1997, West made a delivery to Spartan Trucking in West Virginia, where diesel fuel was loaded from West's truck to an underground storage tank. After the delivery was completed, it was discovered that an unknown quantity of fuel had spilled onto the ground and an adjacent drainage ditch. On April 10, 1997, West was fired as a result of the incident.

West subsequently filed a claim for unemployment insurance benefits. The claim was denied by the Division of Unemployment Insurance based on the finding that West had been discharged for work-related misconduct. West appealed the decision to an unemployment insurance referee, who conducted an evidentiary hearing. The decision of the Division of Unemployment Insurance was upheld, and West appealed to the Commission. Upon taking proof, the Commission upheld the referee's decision. Thereafter, West appealed to the Pike Circuit Court under Kentucky Revised Statute (KRS) 341.450. The court rendered an opinion and order affirming the Commission's decision, and this appeal followed.

West now argues that the circuit court committed reversible error in affirming the decision of the Commission. Specifically, he maintains that the April 9, 1997 incident is best characterized as an isolated case of poor judgment which does not rise to the level of wanton misconduct necessary to deny unemployment benefits. Pointing to Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299 (1962), and Shamrock Coal Company, Inc. v. Taylor, Ky. App., 697 S.W.2d 952 (1985), West argues that to allow a single mishap to constitute willful or wanton misconduct would have the effect of barring a great mass of workers from receiving benefits under a statute enacted for their protection.

KRS 341.370 and 341.530 disqualify a worker from receiving unemployment benefits if the worker was discharged for work-related misconduct. As the circuit court properly noted, misconduct within the meaning of Chapter 341 must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, or a disregard of standards of behavior which the employer has a right to expect of the employee. Kentucky Unemployment Insurance Commission v. King, Ky. App., 657 S.W.2d 250 (1983). In the matter at bar, it is uncontroverted that West was required both by his employer's rules and by federal law and/or regulation to take the following steps when delivering fuel: 1) determine the amount of fuel in the storage tank prior to delivery; 2) remain within 25 feet of the tank during the delivery, and 3) determine the amount of fuel in the tank after the delivery is complete. West failed to take any of these steps during the delivery at issue. By any measure, this failure represents misconduct as defined by King, supra. The issue is not whether West had an unblemished record prior to this incident nor whether the incident is properly characterized as an isolated case of poor judgment. Rather, the issue is whether the Commission properly found that West was terminated from employment for work-related misconduct as defined by Kentucky law and whether this misconduct disqualifies him from receiving unemployment insurance benefits. We must conclude that these questions must be answered in the affirmative, and accordingly must conclude that the circuit court properly affirmed the decision of the Commission.

For the foregoing reasons, we affirm the opinion and order of the Pike Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: Robert J. Greene Pikeville, Kentucky

BRIEF FOR APPELLEE KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION:

Randall K. Justice Frankfort, Kentucky

BRIEF FOR APPELLEE ROGERS PETROLEUM SERVICES, INC.:

Donald H. Combs Pikeville, Kentucky