Warran v. Ky. Unemployment Ins. Comm'n, 2013-CA-000861-MR

• Court: Court of Appeals of Kentucky
• Parties: BRIAN WARRAN APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND KENTUCKY BUILDING SYSTEMS APPELLEES
• Docket Number: NO. 2013-CA-000861-MR,2013-CA-000861-MR
• Decision Date: 05 December 2014

BRIAN WARRAN APPELLANT
v.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND KENTUCKY BUILDING SYSTEMS APPELLEES

NO. 2013-CA-000861-MR

Commonwealth of Kentucky Court of Appeals

DECEMBER 5, 2014

NOT TO BE PUBLISHED

APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 10-CI-00089

OPINION
AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; JONES AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Brian Warran has appealed from the decision of the Hancock Circuit Court affirming the order of the Kentucky Unemployment Insurance Commission (KUIC) denying his request for unemployment benefits. We affirm.

Page 2

Warran worked as an ironworker for Kentucky Building Systems in Lewisport, Kentucky, beginning in 2006. His last day of work was October 30, 2009. Warran filed for unemployment benefits in early January 2010, stating he had been laid off for lack of work following an October 27, 2009, motor vehicle accident he had while on-the-job. A semi ran a red light and hit him on the driver's side of his car at a speed of 45 miles per hour, injuring his back. He indicated that he had physical and/or mental conditions that prevented him from working without any limitations. Warran stated that he had a doctor's note that he had to be on light duty, or office type work, with frequent breaks. He could not do anything involving bending or lifting. In the employer's statement, Kentucky Business Systems owner Tim Powers stated: "Wreck on 10-28-10 not work related, [l]ast day of work 10-30-09. Have not heard from Brian since late Nov., I thought he was still under doctor's care, [l]eft voice mail Mon with no return Wed." In a separate request processed January 31, 2010, Warran stated that he had been laid off with definite recall after a semi ran a red light and hit him, injuring his back. He did not indicate that the accident was related to his work. In the employer's statement responding to this filing, Mr. Powers stated that he had spoken with Warran on February 8, 2010, and that he was still under a doctor's care.

On February 16, 2010, the Division of Unemployment Insurance issued a notice of determination denying Warran's claim for benefits, stating that Warran had failed to maintain timely contact with his employer while he was under

Page 3

a doctor's care and when he was released to light duty. The letter concluded that he voluntarily quit his employment without good cause shown. Warran appealed the decision to the appeals branch, stating that he had returned to work within a week of the accident and was told by Mr. Powers to go home while he was under medical care. He was allowed to work light duty for two days. He stated that he had kept in touch with Mr. Powers by telephone and through his attorney. He had tried to return to work many times, but Mr. Powers told him there was no work for him. Warran reported that in a December 28, 2009, letter to his attorney, Mr. Powers stated that there was no light duty work available and that the work required heavy lifting and climbing.

The appeals branch referee held a hearing on March 25, 2010. Upon questioning by the referee, Warran stated that he was hired by Kentucky Building Systems as an iron worker in February 2006, and he characterized his separation from the company on November 2, 2009, as a layoff by Mr. Powers. Warran stated that Mr. Powers told him that he was afraid he would be liable if his condition worsened. He stated that the automobile accident on October 27, 2009, was not work-related. He worked the rest of the week following the accident on light duty. The referee then asked Mr. Powers several questions. Mr. Powers stated that Warran's date of hire was March 15, 2006, and that he voluntarily quit his job by abandonment. He had never received the letter from the physician regarding Warran's limitations, and he thought Warran had quit when he had not heard from him in months. He first saw the letter in the unemployment claim

Page 4

appeals packet. Mr. Powers stated that he was not able to accommodate Warran's job restrictions. Explaining the events of the days following Warran's accident, Mr. Powers stated:

He came back to work on Thursday morning after the wreck, [said] that he was a little sore and stuff. So he did the same job that he did the day that he was in the basket but the day before he was pulling up the sheets. On Thursday, the other guy pulled up the sheets for him because he was sore from the wreck and I let him work. Then Friday, he worked half a day doing windows. Then he had to go to a doctor's appointment concerning another medical thing he had. Then Monday morning, he called in. He didn't show up for work on Monday morning. He called in and said he was hurt from the wreck worse than he thought and had to start taking physical therapy and see the doctor again. So I told him fine. Then Tuesday morning, he came to work but he was so stiff and so sore and said he hurt so bad and that he was under a doctor's care, having to take physical therapy and on pain pills. So I told him that I couldn't work him with all of those conditions and that he would need to get a doctor's release so that I would not - so that I could work him and not be held liable. Why would I want him working there on pain pills and hurting so bad that he couldn't walk and he couldn't hardly talk? I told him to go home and take care of himself and take care of the doctors' visits.

Mr. Powers then detailed his contact with Warran after that date:

On the page that I sent with the phone records, I saw him Monday the 3^rd and then Friday the 6^th he called right before 3:30 to see where he could pick up his paycheck. Then I tried him again on the 13^th to see what was going on. Then I tried him again on the 24^th and I got no answer. I called back later that day and I didn't get any answer so I left a message I needed to talk to him about his health insurance and he turned right around and called me back then. Then on December 28^th, a lawyer called and asked for a letter and I included that. Then on January 11^th, I got an unemployment notice where he was

Page 5

filing unemployment so I tried him twice that day. That was on a Monday and as of Wednesday, the 13^th when I filled out the paperwork and sent it back, he still hadn't returned my calls.

Mr. Powers considered January 13, 2010, as the date Warran quit his position. On cross-examination, Mr. Powers confirmed that he told Warran he needed a full release with no restrictions from his physician before he could come back to work. He stated that he did not have any light duty work that matched his job description. Even for employees with work-related injuries, Mr. Powers stated that the company did not accommodate modified restrictions on a long-term basis. On further examination by the referee, Warran denied that he had not contacted Mr. Powers. He said there had been a couple of telephone calls, and he had gone to a job site. Warran stated that as of the date of the hearing, he had not been released without restrictions. He also indicated that Mr. Powers never told him that he considered him to have quit his job.

At the conclusion of the hearing, Warran, through his attorney, argued that he had not quit, but had been laid off, and was therefore eligible to collect benefits. Mr. Powers, in turn, stated that it was not his fault that Warran had been injured because he had left the job site against company policy to get a drink when he was involved in the accident. Mr. Powers did not want Warran to work when he returned the following week for safety reasons and because he was afraid of liability.

Page 6

On April 5, 2010, the appeals branch referee issued a decision, reversing the notice of determination. The referee stated that the employer had discharged Warran on January 13, 2010, for reasons other than misconduct connected with the work and that Warran was not disqualified for benefits. Kentucky Building Systems appealed the referee's decision to KUIC, disputing Warran's factual assertions. Mr. Powers sent a letter to KUIC dated April 14, 2010, detailing the reasons he believed the referee's decision was incorrect.

On June 30, 2010, KUIC entered an order reversing the referee's decision. Its findings of fact were as follows:

The claimant was hired by the captioned employer on March 16, 2006, and served as a full-time iron worker. Claimant's job duties required heavy lifting and climbing.

On Tuesday, October 27, 2009, claimant suffered a non-work related injury in an automobile accident, wherein his personal vehicle was struck by a semi-trailer, after leaving the job site to get a Coke, after being told not to do so by his supervisor.

Claimant was off work on Wednesday, October 28, 2009. Claimant returned to work on Thursday, October 29, 2009, and worked his entire scheduled shift, but as he was sore from the wreck, another employee was allowed to perform the heavy lifting required of claimant's position.

Claimant worked one-half day on Friday, October 30, 2009, and left work to seek medical attention. Claimant was off work on Saturday, October 31, and Sunday, November 1, 2009.

The employer has no long-term

...