RENDERED: DECEMBER 23, 1999; 2:00 p.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NOT TO BE PUBLISHED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-000960-MR

KENTUCKY POWER COMPANY APPELLANT

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

ACTION NO. 95-CI-00794

ROBERT J. DAVIS; and KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLEES

OPINION REVERSING ** ** ** ** **

BEFORE: COMBS, EMBERTON AND McANULTY, JUDGES.

EMBERTON, JUDGE: The appellant, Kentucky Power Company, alleges that the Pike Circuit Court erred when it reversed a decision of the Kentucky Unemployment Insurance Commission which determined that the appellee, Robert J. Davis, was discharged for "misconduct" connected to his employment and that the Commission, on remand, erred when it awarded unemployment benefits to Davis. We reverse.

Davis was employed by Kentucky Power for fifteen years. On November 9, 1994, he was requested to work overtime to respond to a power outage. He informed his supervisor that he had a banking appointment but would return to the work site when he was finished with the appointment. A disagreement ensued concerning which company vehicle Davis would take to the appointment. Davis left work and did not return until the following day.

When he returned, he was notified by letter that he was suspended from work, without pay, for three days. He was also required to attend counseling on November 11 with Dr. Henry Cecil, a social worker with a Ph.D., in community health. He was told that if he failed to follow any of the counselor's recommendations, he would be discharged.

Davis reported to Dr. Cecil's office. He informed Dr. Cecil that he had a history of mental illness and was under psychological care. Dr. Cecil then requested Davis sign a release of his confidential psychiatric records and submit to a blood test to screen for drugs. Davis refused to sign the release and submit to the testing. He requested that Dr. Cecil consult with his attorney, which Dr. Cecil refused. When Davis reported to work on November 17, 1994, he was informed that he was discharged.

The referee found that Davis was "insubordinate in refusing to follow a reasonable directive of his immediate supervisor which resulted in his suspension." He further found that Davis was informed that he was to cooperate with the counselor to whom he was referred or be terminated. Davis's refusal to comply with the counselor's request and further insubordination disqualified him from benefits. The denial was affirmed by the Commission. The circuit court reversed, holding that Davis's refusal to release his medical records and submit to a blood test was not willful misconduct as defined under Ky. Rev. Stat. (KRS) 341.760(6).

Unemployment statutes are to be liberally construed so as to award benefits to those workers who lose their employment due to reasons beyond their control. Vance v. Kentucky Unemployment Ins. Com'n, Ky. App., 814 S.W.2d 284 (1991). As stated in Kentucky Unemployment Com'n v. King, Ky. App., 657 S.W.2d 250, 251 (1983):

It is said at 76 Am.Jur.2d Unemployment Compensation $ 52 that `[t]he basic principle at the root of an unemployment compensation statute . . . is . . . the benefit of persons unemployed through no fault of their own.' The section continues by noting that `an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules' would support exclusion from benefits whereas `mere mistakes, inefficiency, [or] unsatisfactory conduct' would not. (Emphasis original).

The Commission, however, is an administrative agency and its findings must be affirmed if supported by substantial evidence.

Misconduct is defined as a "knowing violation of a reasonable and uniformly enforced rule of an employer" and "refusing to obey reasonable instructions." KRS 341.760(6). A reasonable instruction is one that is within the employee's ability to perform and which would not result in any undue hardship. City of Lancaster v. Trumbo, Ky. App., 660 S.W.2d 954 (1983).

The Commission found that the order for Davis to work overtime was not one that would cause undue hardship. He was given permission to attend his banking appointment and then report to the work site. His failure to return to work was misconduct sufficient to justify a denial of benefits.

Instead of termination at that point, Kentucky Power conditioned Davis's continued employment on his cooperation with an appointed counselor. Davis was fully informed of the consequences of his failure to follow Dr. Cecil's request, and although Kentucky Power had no general policy in regard to counseling or drug testing, Davis was well aware that cooperation with Dr. Cecil was a prerequisite to his continued employment.

There was substantial evidence of probative value to support the Commission's decision. King, supra, at 251. The circuit court erroneously reversed that order. The judgment of the circuit court is reversed and the original order of the Kentucky Unemployment Insurance Commission finding that Davis is disqualified from unemployment benefits is ordered reinstated.

McANULTY, JUDGE, CONCURS. COMBS, JUDGE, CONCURS BY SEPARATE OPINION. COMBS, JUDGE, CONCURRING: I concur in the result reached by the majority opinion in this case in that I agree that Davis's termination was properly premised on his own misconduct and insubordination. However, a peripheral issue involved in this proceeding is a troubling one that was well addressed by Judge Lowe: whether the refusal to release medical records and to submit to a blood test could be construed to be willful misconduct.

Davis did not choose the counselor to whom he was referred. "Cooperation" with that counselor, as mandated by his employer, could arguably be interpreted as showing up for an appointment and engaging in a good-faith consultation. Whether he could be compelled to release medical records or to undergo a blood test by a professional whom he did not select is an issue that must give pause.

Under the circumstances of this case, we need not address that issue as there is sufficient evidence in Davis's conduct to justify his termination. However, I believe that it is worth noting that Judge Lowe identified what otherwise could be a significant issue for more detailed analysis and review.

BRIEF FOR APPELLANT: Randall S. May Hazard, Kentucky

BRIEF FOR APPELLEE ROBERT J. DAVIS:

Russell H. Davis, Jr. Pikeville, Kentucky