** SEE: Okl., 784 P.2d 91 (1989)
Appeal from the District Court of Tulsa County; Ronald Shaffer, Judge.
AFFIRMED.
David L. Fist and Andrea K. Allbritton, Tulsa, for appellants.
Thomas E. Salisbury, Tulsa, and Richard B. Wilkinson, Oklahoma City, for appellee.
MEMORANDUM OPINION
( HANSEN )
This is an appeal from a decision of the trial court ruling that an employee's acts did not constitute misconduct which would disqualify him from receiving unemployment benefits under the Oklahoma Employment Security Act.
Donald Gene Arkle (Appellee) was employed by Independent School District Number One of Tulsa County (Appellant) for approximately five years until his termination on September 20, 1986. During that time, Appellee was employed in the transportation department as a lot crewman. One of the job responsibilities of a lot crewman is to be a substitute school bus driver. Oklahoma law requires that all school bus drivers obtain a certificate issued by the Oklahoma State Department of Education prior to their employment. Before a certificate will be issued, however, the driver must take and pass an annual physical examination. Persons who do not obtain a certificate cannot be employed as school bus drivers.
Appellant gave Appellee written notice of the physical examination scheduled for him on August 12, 1986. Appellee did not receive the written notice. However, he admitted he knew of his scheduled physical examination at least two weeks in advance.
Appellee worked until August 1, 1986, and was not scheduled to recommence work until September 2nd or 3rd, 1986. It was Appellee's understanding that the physical examination and the drug screening test, also required, did not need to be done at any certain time, as long as they were done prior to his returning to work in September. He testified that he fully intended to have the physical examination and drug screening test done before returning to work.
Approximately one week before his scheduled physical examination, Appellee notified his supervisor he would be out of town on the date of his physical examination, and he would have his private doctor perform the physical examination. His supervisor told him this was proper, but he would need to get a form from the transportation department for the drug screening test. Appellee testified he never went to the transportation department to pick up the form.
At this same time, Appellee went to Kansas City to visit his ill mother. Upon returning from Kansas City on approximately August 20, Appellee contacted the head dispatcher who told him that before he returned to work on September 2nd or 3rd, he would have to go to his own doctor for the physical examination and drug screening test.
Appellee testified he visited his private physician upon his return from Kansas City on August 20. He learned at this point he was ill and needed to be hospitalized.
On August 28, 1986, Appellee was admitted to the hospital suffering from hepatitis. His admission to the hospital was reported to the school district associate superintendent of personnel by his doctor in a letter which stated Appellee would be confined for approximately thirty (30) days. Throughout Appellee's stay in the hospital, all of his drug screening tests were negative. His physician conducted a physical exam and found Appellee's health was good, with the exception of the hepatitis.
Appellee testified he would have taken the results of his examination to Appellant but was hospitalized and could not do so.
Appellee did not furnish a copy of his physical examination to Appellant but told his physician he needed the physical examination for his job. In addition, he testified he neither instructed his physician to send the results of this physical examination nor told him to send any paperwork relating to the physical examination to Appellant.
On August 20, 1986, Appellee was recommended for termination for having failed to take the annual physical examination and drug screening test. The Oklahoma Education Association field service representative was present for Appellee at his termination hearing. At the hearing the representative presented copies of all Appellee's hospital drug use tests to the school board. After hearing the evidence presented, the school board upheld Appellee's termination.
The Employment Security Commission granted unemployment benefits to Appellee. Appellant appealed this decision to the appeal tribunal which reversed the granting of benefits. Appellee then appealed to the Board of Review which affirmed the appeal tribunal's denial of benefits. Then, Appellee filed a petition for review in the district court. The trial court ruled Appellee's acts did not constitute misconduct which would disqualify him from receiving unemployment benefits. Appellant appeals this decision.
Appellant advises it terminated Appellee for failing to provide it with, or notify it of, the results of his required physical examination and drug use test, and that this deliberate failure to satisfy the requirements of his continued employment clearly constitutes willful misconduct. See