RENDERED: March 25, 2005; 2:00 p.m. 
NOT TO BE PUBLISHED 
Commonwealth Of Kentucky 
Court of Appeals 
NO. 2003-CA-002789-MR 
BEVERLY J. POWELL APPELLANT 
APPEAL FROM ROWAN CIRCUIT COURT 
v. HONORABLE WILLIAM B. MAINS, JUDGE 
ACTION NO. 03-CI-90172 
KENTUCKY UNEMPLOYMENT INSURANCE 
COMMISSION AND KENTUCKY MEDICAL 
SERVICES FOUNDATION APPELLEES 
OPINION 

AFFIRMING 
** ** ** ** ** 

BEFORE: GUIDUGLI AND TAYLOR, JUDGES; MILLER, SENIOR JUDGE.1 
GUIDUGLI, JUDGE: 

Beverly Powell has appealed from the Rowan 
Circuit Court’s order affirming the Kentucky Unemployment 
Insurance Commission’s decision to deny her request for 
unemployment benefits due to misconduct. Because we agree that 
substantial evidence supports the Commission’s findings and that 
it correctly applied the law, we affirm. 

Powell began working as a receptionist for Kentucky 
Medical Services Foundation (hereinafter “KMSF”) in April 2002. 
For several years before that, she had been working for the 
predecessor company. On August 26, 2002, Powell filed a request 
for medical leave under the Family and Medical Leave Act, 
attaching the necessary form from her healthcare provider. 
Although she had not been an employee for the required twelve 
months, Powell was granted leave from August 21 through 
September 9, 2002, because she had accrued sick time sufficient 
to cover the time period for which she would be out of the 
office. Powell then received an extension of leave time until 
September 23, 2002. Two days after the expiration of her 
extended leave time, Powell verbally requested additional leave. 
Charles Merritt, the Director of Human Resources for KMSF, sent 
Powell the following letter the same day: 

I received your verbal request for 
additional Medical Leave given in the form 
of a voice-mail left for Margaret Radford, 
the Radiation Medicine Satellite Clinic 
Administrator. Your request for additional 
leave has been granted continent upon the 
completion of the enclosed re-certification. 
Please forward these forms to the healthcare 
provider who completed the original 
certification for your leave. You must 
return the completed forms to me, at the 
address listed below, no later than October 
18, 2002 for the additional leave to be
granted. Please feel free to contact me at 
the number listed below if you have any 
questions. 

Powell met with several representatives of KMSF on 
October 9th to discuss an office complaint she had made, and at 
that time she was reminded of the need to provide the recertification 
forms. Powell disputed this, and later stated 
that she was told not to return to work until the investigation 
on her complaint had been completed. The following day, Merritt 
received a fax from Powell’s healthcare provider that extended 
her medical leave until October 1st. By letter dated October 10, 
2002, Merritt informed Powell that the faxed note did not 
satisfy the requirements of re-certification, and reminded her 
that the re-certification forms he sent with the previous letter 
were due October 18th. Those forms would allow her absence from 
work since September 24th to be considered medical leave. 

According to her testimony, Powell forwarded the recertification 
forms to her healthcare provider, but discovered 
on October 18th that they had not been completed. The physician 
who was to complete the forms was on vacation and did not 
complete the forms until after the deadline had passed. 
On October 21, 2002, Merritt sent Powell a letter 
terminating her employment for unexcused absences. At that 
time, Merritt had not yet received the completed recertification 
forms. Powell responded in a handwritten note
dated October 29, 2002, indicating that she was unaware of 
KMSF’s policies and procedures, as she had never received a copy 
of the personnel handbook. Merritt responded to this 
correspondence by letter dated November 4, 2002, stating that he 
had received the healthcare provider re-certification forms on 
October 31st. He reminded her that on three occasions she had 
been informed about the need to provide the re-certification 
forms by October 18th and that she had never indicated that there 
was any problem with this. However, in reviewing the late recertification 
forms, Merritt noted that she was released to work 
on October 1st, so that her absences between that date and 
October 21st were considered unexcused. 

Powell filed a claim for unemployment benefits 
pursuant to KRS Chapter 341 on January 5, 2003. In her 
accompanying statements, Powell indicated that she had been 
under severe physical and emotional distress due to a hostile 
work environment since April 15, 2002, and that she was still 
being treated for the condition. Regarding her absence from 
work, she indicated that she was discharged due to a 
technicality in that forms were not timely sent in because of a 
delay in her healthcare provider’s office. Merritt filled out 
the employer statement forms for KMSF, in which he indicated 
that Powell had been discharged for failing to provide medical
re-certification pursuant to the FMLA, making her absences 
unexcused.

On January 31, 2003, the Division of Unemployment 
Insurance issued a notice of determination, ruling that Powell 
was not entitled to benefits because she had been discharged for 
misconduct connected with her work. Powell appealed the 
decision to a referee, who conducted an evidentiary hearing on 
March 4, 2003. One week later, Referee Debra Cook issued an 
opinion affirming the earlier determination, reasoning that 
based upon her factual findings, Powell was discharged for 
misconduct pursuant to KRS 341.370(6) when she refused to obey 
her employer’s reasonable instructions to return the recertification 
forms by October 18, 2002. The referee also 
relieved KMSF’s reserve account of charges. Powell then sought 
review from the Commission pursuant to KRS 341.430. The 
Commission adopted the referee’s findings of fact and 
conclusions of law and affirmed her decision, determining that 
the overall weight of the evidence supported the referee’s 
findings of fact and that she correctly applied the law. The 
Commission also indicated that Powell had improperly attempted 
to enter documentary evidence during the appeal, which was not 
permitted and therefore not considered. Powell next sought 
judicial review pursuant to KRS 341.450 by filing a complaint in 
Rowan Circuit Court. Following briefing, the circuit court
entered an order on November 24, 2003, affirming the 
Commission’s decision and holding that the findings of fact were 
supported by substantial evidence and that the law was correctly 
applied. This appeal followed. 

In her brief, Powell argues that the Commission’s 
finding of misconduct was not supported by substantial evidence 
and that the Commission misapplied the law. On the other hand, 
both the Commission and KMSF disagree with Powell’s assertions. 
In Burch v. Taylor Drug Store, Inc.,2 this Court set 
out the applicable standard of review for itself and for the 
circuit court as follows: 

Judicial review of the acts of an 
administrative agency is concerned with the 
question of arbitrariness.[] The findings 
of fact of an administrative agency which 
are supported by substantial evidence of 
probative value must be accepted as binding 
by the reviewing court.[] The court may not 
substitute its opinion as to the weight of 
the evidence given by the Commission.[] 
Upon determining that the Commission’s 
findings were supported by substantial 
evidence, the court’s review is then limited 
to determining whether the Commission 
applied the correct rule of law.[] 

With this standard in mind, we shall review the decision below. 

Our decision in the present case turns on the 
application of KRS 341.370, which provides in relevant part: 
(1) A worker shall be disqualified from 
receiving benefits for the duration of any 
period of unemployment with respect to 
which:
(a) . . . 
(b) He has been discharged for 
misconduct or dishonesty connected with 
his most recent work. . . . 

KRS 341.370(6) defines “discharge for misconduct” as including, 
but not limited to, “refusing to obey reasonable instructions.” 

In previous opinions, this Court has observed that employers are 
entitled to faithful and obedient service from their employees.3 
In City of Lancaster v. Trumbo,4 the Court stated, “[w]here an 
employee manifests an intent to disobey the reasonable 
instructions of his employer, the denial of unemployment 
benefits on the basis of misconduct is proper.” On this same 
subject, the Court in Kentucky Unemployment Insurance Commission 
v. King5 cited to 76 Am.Jur.2d Unemployment Compensation § 52 for 
the proposition that “‘an act of wanton or wilful 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.” Finally, we recognize that although the employee has the 
overall burden of proof and persuasion, the employer bears the 
burden of proof to establish misconduct, as “a misconduct 
allegation is in the nature of an affirmative defense.”6 
In the present case, Powell argues that the finding of 
misconduct is not supported by substantial evidence. We 
disagree. While it is true that Powell provided testimony to 
the contrary, based upon our review of the record we must hold 
that KMSF provided ample evidence to support the referee’s and 
the Commission’s findings of fact. Specifically, Merritt’s 
letters to Powell as well as his testimony concerning the 
circumstances leading to her discharge all support the findings 
of fact. 

Powell also argues that the Commission improperly 
applied the law. Again, we disagree. It appears that the basis 
of this argument is that the Commission did not place the burden 
of proof on KMSF to establish misconduct. This is incorrect 
because not only did KMSF bear the burden of proof on this 
issue, but was able to establish misconduct on Powell’s part. 
The record is quite clear that KMSF provided documentary and 
testimonial evidence to establish misconduct on Powell’s part 
for her failure to timely provide the re-certification forms. 
Merritt provided Powell with the necessary forms in 
correspondence dated September 25th, and reinforced the 
requirement in person on October 9th and by a subsequent letter 
on October 10th. Powell had sufficient time to obtain the 
completed re-certification forms. Regardless of whether there 
was a “mix-up” in her healthcare provider’s office, Powell still 
had a duty to follow KMSF’s instructions, which were reasonable 
under the circumstances of this case. It was up to Powell to 
establish a reason for her continued medical leave, over and 
above her testimony that she did not feel like she was ready to 
return to work. That Powell had never received a copy of the 
employee handbook is of no consequence because Merritt, among 
others, specifically informed her of the need to timely provide 
the re-certification forms. Furthermore, KMSF did in actuality 
review the re-certification forms once they were received after 
Powell’s discharge. But those forms only provided for leave 
through October 1st, a date that had passed one month before the 
forms were ever received. Powell’s willful and wanton disregard 
of KMSF’s instructions to provide the re-certification by a 
specific date constituted misconduct as defined by KRS 
341.370(6). The Commission properly applied the law to the 
facts of this case in determining that Powell was not eligible 
to collect unemployment benefits due to her misconduct, and the 
circuit court was correct in affirming that decision. 

For the foregoing reasons, the opinion of the Rowan 
Circuit Court is affirmed. 

ALL CONCUR.

BRIEF FOR APPELLANT: 
Beverly J. Powell, pro se 
Morehead, KY 
BRIEF FOR APPELLEE, KENTUCKY 
UNEMPLOYMENT INSURANCE 
COMMISSION: 
B. Amy O’Nan 
Education Cabinet 
Frankfort, KY 
BRIEF FOR APPELLEE, KENTUCKY 
MEDICAL SERVICES FOUNDATION: 
James D. Allen 
Lizbeth Ann Tully 
Amy Johnson 
Lexington, KY