Piper v. Singer Co., Inc.

• Decision Date: 27 January 1984
• Citation: 663 S.W.2d 761
• Parties: Peggy PIPER, Appellant, v. The SINGER COMPANY, INC., d/b/a Earle C. Clements Job Corps Center and Kentucky Unemployment Insurance Commission, Appellees.
• Court: Kentucky Court of Appeals

Page 761

663 S.W.2d 761

Peggy PIPER, Appellant, v. The SINGER COMPANY, INC., d/b/a Earle C. Clements Job Corps Center and Kentucky Unemployment Insurance Commission, Appellees.

Court of Appeals of Kentucky.

Jan. 27, 1984.

D. Todd Littlefield, Western Ky. Legal Services, Owensboro, for appellant.

Sidney H. Hulette, Ruark & Hulette, Morganfield, for appellee, The Singer Co., Inc.

Barbara Rader McAdam, Cabinet for Human Resources, Frankfort, for appellees.

Before CLAYTON, LESTER and MILLER, JJ.

LESTER, Judge.

This is an appeal from a judgment reversing a determination of the Unemployment Insurance Commission that appellant was entitled to benefits.

The appellant, who had worked at the Job Corps Center for six and one half years, became pregnant, and her condition with resultant complications coupled with the work-related stressful conditions caused her to consult with her doctor. Based upon information given him by Piper, the physician recommended in writing that his patient should not work at her present place of employment during pregnancy. While so stating, on May 11, 1982, the doctor later modified his position, on August 16, 1982, to "[p]hysically able to work in a non-stress situation."

Not only were medical views subject to change but so also were determinations by the commission's examiners, for Piper was first determined to be ineligible for benefits, then eligible and then, again, ineligible. She took an appeal and a referee concluded that she was discharged, but not for proven misconduct, and reinstated her eligibility. The K.U.I.C. affirmed the referee, but the Union Circuit Court, after making its own findings of fact, reversed the commission.

Before delving into the facts of this cause, we believe a review of applicable legal principles to be enlightening at this juncture. In the first place, if the findings of fact of an administrative agency are supported by substantial evidence of probative value, they must be accepted as binding upon the reviewing court, and then it must be determined whether or not the agency applied the correct rule of law to the facts so found. Southern Bell Telephone and Telegraph Co. v. Kentucky Unemployment Ins. Comm., Ky., 437 S.W.2d 775 (1969); Tackett v. Kentucky Unemployment Ins. Comm., Ky.App., 630 S.W.2d 76 (1982). Substantial evidence has been defined as being that of substance and relative consequence, O'Nan v. Ecklar Moore Express, Inc., Ky., 339 S.W.2d 466 (1960), while the test of substantiality has been set forth in Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972), as being:

... whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men.

It requires no citation of authority to point out that upon appeal from an administrative agency, charged with the duty of fact finding, that a reviewing court is not free to substitute its judgment for that of the agency unless the latter acted in an arbitrary or capricious manner. In the case at bar, there is not the slightest suggestion that the referee or commission acted as such. It is also axiomatic that the court should not make its own findings of fact. Although the criteria for court review of administrative determinations is somewhat elusive, one of the best statements addressing the problem is found in Commonwealth v. Frost, 295 Ky. 137, 172 S.W.2d 905, 909 (1943), to the effect:

There are many factors affecting the scope of judicial review of administrative action. Neither its extent nor limitation can be closely defined. In the absence of statutory authority in a particular case, it may be said that the courts will not, under the pretext of finding a remedy for one believed to be wronged, assume to exercise a discretion which the people, acting through their Legislature, have lodged in administrative officers and agencies.

As said in Bancamerica-Blair Corporation et al v. State Highway Commission et al, 265 Ky. 100, 95 S.W.2d 1068, 1071: "The very essence of a discretionary power is that the person or persons exercising it may choose which of several courses will be followed. The power to exercise an honest discretion necessarily includes the power to make an honest mistake of judgment."

Judicial discretion is a thing apart, and administrative discretion will not be disturbed by the courts unless it is abused or unreasonably exercised or is otherwise unlawful. (citations omitted)

Since it will assume some significance, we now turn to a discussion of the application of the hearsay rule to this litigation. The rule, historically speaking, originally developed during the Restoration of the English monarchy (1660-1685), 5 Wigmore, Evidence Sec. 1364 (Chadbourn rev. 1974), and finds its way to our system of American jurisprudence through our adoption of the English common law and, in criminal matters, by virtue of our constitutional right to confrontation. It is equally applicable to the civil law, Lawson, Kentucky Evidence Law Handbook, Sec. 8.00 (1976), but has not been incorporated in our rules of procedure. Whether the...