Louisiana Hospital Service, Inc. v. Bookter

• Decision Date: 30 June 1975
• Docket Number: No. 10355,10355
• Citation: 317 So.2d 282
• Parties: LOUISIANA HOSPITAL SERVICE, INC., Plaintiff-Appellant, v. Peggy BOOKTER and the Administrator of the Department of Employment Security of the State of Louisiana, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 282

317 So.2d 282

LOUISIANA HOSPITAL SERVICE, INC., Plaintiff-Appellant, v. Peggy BOOKTER and the Administrator of the Department of Employment Security of the State of Louisiana Defendant-Appellee.

No. 10355.

Court of Appeal of Louisiana, First Circuit.

June 30, 1975.

Rehearing Denied Aug. 26, 1975.

Writ Refused Oct. 17, 1975.

John S. White, Jr., Baton Rouge, for plaintiff-appellant.

Marion Weimer, Baton Rouge, for defendant-appellee.

Before SARTAIN, ELLIS and BARNETTE, JJ.

SARTAIN, Judge.

This is an appeal by Louisiana Hospital Service, Inc. (formerly Blue Cross of Louisiana), former employer of defendant- claimant Peggy Bookter, from a decision of the trial court affirming a ruling of the Board of Review for the Department of Employment Security finding claimant innocent of any misconduct which would disqualify her from receiving unemployment compensation benefits. We affirm.

The record shows that plaintiff terminated claimant's employment on November 19, 1973. Thereafter claimant filed a claim for unemployment compensation benefits, which claim was denied. On appeal to the Appeals Tribunal for the Department of Employment Security the appeals Referee held claimant disqualified for benefits on grounds that she was discharged under circumstances constituting misconduct within the meaning of R.S. 23:1601(2). Pursuant to R.S. 23:1630 the Board of Review of the Department of Employment Security upon request by claimant initiated a review of the Referee's decision and reversed, finding no misconduct within the meaning of the statute. The Board's findings are set out below:

'EVIDENCE

'The evidence shows that the claimant worked for Blue Cross of Louisiana in Baton Rouge, 39 months as a Clerk and her salary was $415 per month. Her work schedule was Monday through Friday, from 8:00 a.m. until 4:15 p.m. On November 16, 1973, the claimant requested permission to leave her job at three o'clock to keep a doctor appointment. The claimant's afternoon break was from 2:40 p.m. until 2:55 p.m. When the claimant began her break on this particular afternoon, she went to the parking lot to see if her car would start, as she had had trouble with it and when she started it, she moved her car closer to the building. The claimant did not leave her work area until after three o'clock. In the testimony given by the witness for the employer, Mrs. Bank stated she saw the claimant drive off the parking lot, and another statement at the close of the hearing, she stated that she did not see the claimant leave the premises. The claimant stated that she did not clock out as she forgot and other times when she failed to clock out or in, she would take her card to the Assistant Manager, or the Manager, and they would sign it stating the time. The claimant presented her doctor's card signed as one of the requirements. Her leaving before three o'clock would have been authorized leave without pay. The claimant work on November 19, 1973, which was Monday following her leaving on Friday, until 4:20 p.m. when she was called to the Personnel Office and Mr. Prejean informed the claimant she was fired for misconduct.

'OPINION

'R.S. 23:1601(2) provides that a claimant shall be disqualified when discharged for misconduct connected with the employment. Such disqualification shall continue until such time as the claimant has returned to work and earned wages equivalent to ten times the weekly benefit amount, and must then have been separated under nondisqualifying circumstances.

'After carefully reading all of the testimony and evidence presented in this case, the Board of Review finds that there is conflicting testimony. We find that the claimant had been granted permission to leave early and the claimant testified that she did not leave the building before 3:00 p.m.

'We, therefore, conclude that the claimant is not guilty of misconduct within the meaning of the Act.

'IT IS ORDERED that the decision of the Appeals Referee be reversed and the disqualification removed.'

Plaintiff sought judicial review of the above decision pursuant to R.S. 23:1634 and the trial court affirmed .

On appeal to this court plaintiff contends that the trial court erred in concluding that there was sufficient evidence to support the Board's finding of fact, and further, the court erred in failing to find a misapplication of the law by the Board.

Where judicial review is sought in unemployment compensation cases the finding of the Board of Review as to facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. R.S. 23:1634. We have reviewed the evidence before the Board and find it amply supportive of the Board's findings.

We find no merit to plaintiff's argument that we should give greater credence to the findings of the Appeals Referee rather than those of the Board since the Referee was able to observe the demeanor of the witnesses and therefore better able to determine the vital issues of credibility presented in this case. It is not the decision of the Appeals Referee which is here called...