RENDERED: December 10, 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NOT TO BE PUBLISHED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-003080-MR

THERESA ANN HAWKINS APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE GARLAND W. HOWARD, JUDGE

ACTION NO. 98-CI-00500

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND OMICO PLASTICS APPELLEES

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

BEFORE: DYCHE, MCANULTY, AND SCHRODER, JUDGES.

DYCHE, JUDGE: Theresa Hawkins appeals from a judgment of the Daviess Circuit Court affirming the decisions of the Kentucky Unemployment Insurance Commission and the Division of Unemployment Insurance denying her application for unemployment benefits. She claims that there was not substantial evidence in the record to support the decision denying her application. We disagree, and affirm.

Hawkins was hired by Omico Plastics in October, 1997, after the position she had held with Optimum Swine Genetics for two years was eliminated. She worked either one or two days with Omico, but on the second day of her scheduled employment, October 22, 1997, she informed her employer that she was not returning to work. Hawkins had been suffering from plantar fascitis and heel spurs and was unable to stand for long periods of time without experiencing pain in her feet which also ran into her back and shoulders. Her job as a machine operator at Omico required her to stand on her feet for eight hours a day, with a thirty-minute lunch break and two other ten-minute breaks. Julie Price, personnel director for Omico, testified that both standing and sitting positions were available at Omico. Hawkins did not inform Omico of her medical problem, but merely gave as her reason for leaving that she was looking for a better job.

Hawkins filed an application for unemployment benefits on November 3, 1997. The application was initially denied, and an evidentiary hearing was held before Referee David Coe. He determined that while Hawkins did have a medical condition that prohibited her from standing for extended periods of time and could not have continued at the job she held with Omico, she did not tell her employer that she was physically unable to do the job or ask about a transfer to another type of work. Since she did not inquire into any reasonable available alternatives prior to quitting, he found that she had left her job without good cause attributable to the employment, thus affirming the denial of benefits.

Hawkins appealed this decision to the Commission, which adopted the referee's findings of fact and conclusions of law, and affirmed the denial. On appeal, the Daviess Circuit Court concluded that the Commission's findings were supported by the evidence and by applicable law, and again affirmed the decision. It is from this order of the circuit court that Hawkins now appeals.

If the findings of fact of an administrative agency are supported by substantial evidence in the record, the findings are binding on the reviewing court, which is left to determine only if the agency applied the correct rule of law. H & S Hardware v. Cecil and Kentucky Unemployment Insurance Commission, Ky. App., 655 S.W.2d 38, 40 (1983). If the correct rule of law has been applied to facts supported by substantial evidence, the agency's final order must be affirmed. Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299 (1962). A reviewing court may not substitute its judgment concerning the weight of the evidence given by the Commission. Burch v. Taylor Drug Store, Ky. App., 965 S.W.2d 830 (1998). The circuit court in this case properly affirmed the Commission's decision.

Because Hawkins voluntarily quit her job, her claim is analyzed under Kentucky Revised Statute (KRS) 341.370(1), which states in pertinent part:

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

* * * (c) He has left his most recent suitable work or any other suitable work which occurred after the first day of the worker's base period and which last preceded his most recent work voluntarily without good cause attributable to the employment. . . .

The Commission determined that Hawkins voluntarily quit her job without exploring the option of obtaining a sitting job at Omico. Hawkins relies almost exclusively on Broadway and Fourth Ave. Realty Co. v. Crabtree, Ky., 365 S.W.2d 313 (1962), for the proposition that entering a statement from her doctor about her medical condition into the record is sufficient to meet the burden of proof placed on the claimant in an application for benefits. In effect, she asserts that the medical evidence alone should be dispositive of the issue. Such a reading misconstrues the role of the administrative agency as fact-finder.

It is well-settled that the trier of facts in an administrative agency may consider all of the evidence and choose that which he believes. Transportation Cabinet v. Thurman, Ky. App., 897 S.W.2d 597 (1995). The Commission considered the evidence before it and determined that Hawkins had not established that she had left her job with good cause attributable to the employment, and was therefore disqualified under KRS 341.370(1)(c) from receiving benefits. As previously discussed, the role of the circuit court and of this Court is to determine if there exists substantial evidence in the record to support the findings of the Commission, not merely to determine if Hawkins met her burden of proof.

Hawkins never told Omico about her physical limitations. After working one or two days at the position for which she was hired she merely telephoned and informed someone at Omico that she was not returning because she was going to look for a better job. Omico was never given the opportunity to accommodate Hawkins by offering her a sitting job with the company. Hawkins asserts in her brief to this Court that "[w]hen she informed Omico Plastics that she was quitting that job, she was not offered another job and nobody inquired as to whether she would be interested in a different position." It is now disingenuous, at best, for her to assert that she is entitled to benefits because she was not offered accommodations when no one at Omico had any reason to suspect they were necessary. Substantial evidence exists in the record to show that she did not leave her position at Omico with good cause for reasons attributable to the employment.

The decision of the Daviess Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Bradley P. Rhoads Owensboro, Kentucky

BRIEF FOR APPELLEE KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION:

Timothy A. Sturgill Frankfort, Kentucky

BRIEF FOR APPELLEE OMICO PLASTIC:

John Bickel Mark Pfeifer Owensboro, Kentucky