Ford v. Traughber

813 S.W.2d 141, 1991 Tenn. App. LEXIS 174
CourtCourt of Appeals of Tennessee
DecidedMarch 13, 1991
StatusPublished
Cited by27 cases

This text of 813 S.W.2d 141 (Ford v. Traughber) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Traughber, 813 S.W.2d 141, 1991 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1991).

Opinion

OPINION

LEWIS, Judge.

Appellant Christine Ford applied to the Tennessee Department of Employment Security for unemployment compensation benefits. The Board of Review denied appellant’s claim after finding that appellant “is not able and available for work under T.C.A. § 50-7-302(a)(4).” The trial court affirmed the decision of the Board of Review after determining that there was “substantial material evidence in the record to support the Board’s decision.”

On appeal, appellant contends that the Board of Review found, and the trial court affirmed, that appellant was not entitled to benefits solely because she was not able to return to her former employment as a nursing assistant. She insists that this is not the test but that she is entitled to benefits if she is “able to work, available for work and making a reasonable effort to secure work” that she is reasonably qualified to perform.

Appellant’s employment with the Veterans Administration Medical Center (Medical Center) began in 1980. She was employed as a nursing assistant at the time her employment with the Medical Center was terminated on 30 November 1988.

Her job as a nursing assistant required her to care for patients. In her care of the patients, she was, among other things, required to bend, stoop and lift weights in excess of forty-five pounds.

At the hearing before the Appeals Tribunal, appellant testified that she became unable to perform her duties as a nursing assistant because of a back condition aggravated by her work. She testified that she could perform light duty work if it did not involve lifting over twenty-five pounds.

On cross-examination appellant testified that she was unable to do “day work” and that she had a doctor’s statement to corroborate that she could not do “day work.” She insists that “day work” required physical labor that aggravated her back condition. She did not offer the doctor’s statement.

Prior to her termination and subsequent to her “back problems,” the Medical Center placed appellant in a temporary position in its pharmacy service where her duties included packaging and wrapping medication to be mailed to patients.

*143 On or about 17 October 1988, the Medical Center submitted to appellant a notice of appellant’s proposed separation for disability due to her inability to perform her job as a nursing assistant. On that same day appellant requested a permanent assignment to the pharmacy service.

On 16 November 1988, the Medical Center notified appellant she would be terminated effective 30 November 1988.

In January 1989, appellant applied to the Medical Center for the position of dental assistant.

The Medical Center rejected appellant's applications for pharmacy technician and dental assistant on the ground that appellant did not qualify for either position.

On her application for the position of pharmacy technician, it is noted: “Ms. Ford stated on her application that she would not accept a position below GS-4. This grade level requires six months specialized experience equivalent to the next lower grade. She does not possess this experience.” The position of pharmacy technician also required appellant to do lifting of over forty-five pounds.

On the application for dental assistant, it is noted: “Ms. Ford stated on her application that she would not accept a position below GS-4. This grade level requires (GS-4) one year qualifying experience equivalent to the next lower grade. She does not possess this qualifying experience as stated on her application.”

Prior to her termination, appellant was examined and treated by at least three doctors. Dr. Davis and Dr. Stanley Hobbs were private physicians selected by appellant. Dr. Watson was selected by the Medical Center to examine and treat appellant.

The record shows that Dr. Watson concluded in his report that Dr. Davis’ reports were insufficient to support a causal connection between appellant’s ongoing disability and her injury while at work on 20 August 1986. Dr. Watson also concluded that Dr. Davis’ report admitted that there was no medical reason for placing appellant on light duty and that Dr. Davis did so because of appellant’s subjective complaints of pain in her back.

Dr. Davis’ note of 29 June 1987 stated in part: “I think T need to find out more about her, because she keeps staying off work and she had what I considered to be a fairly minor injury and I am having some difficulty finding enough physical evidence that she does have serious pain.”

Subsequently, Dr. Davis recommended light duty for appellant. The light duty restrictions applied only to lifting and not to bending or stooping.

Because of the light duty restrictions, appellant was assigned on a temporary basis to the pharmacy. The pay scale for the job appellant was performing in the pharmacy was below that of nursing assistant. However, the Medical Center continued to pay appellant the same salary she received as a nursing assistant.

The Tennessee Employment Security Law was enacted for the purpose of alleviating the economic insecurity of an individual and his or her family due to unemployment and is for the benefit of those who are unemployed through no fault of their own. Tenn.Code Ann. § 50-7-102; Davis v. Aluminum Co. of Amer., 204 Tenn. 135, 316 S.W.2d 24 (1958). The statute is to receive a “liberal interpretation by the courts.” Weaver v. Wallace, 565 S.W.2d 867, 869 (Tenn.1978).

The standard of judicial review applicable in unemployment compensation benefit cases where the trial court sits as an appellate court is set forth in Tennessee Code Annotated Section 50 — 7—304(i)(3):

In determining the substantiality of evidence, the chancellor shall take into account whatever in the record fairly detracts from its weight, but he shall not substitute his judgment for that of the board of review as to the weight of the evidence on questions of fact. No decision of the board of review shall be reversed, remanded, or modified by the chancellor unless for errors which affect the merits of the final decision of the board of review.

*144 If there is substantial evidence to support the decision of the Board of Review, the Board’s decision is conclusive, and the trial court’s review shall be confined to questions of Jaw. Perryman v. Bible, 653 S.W.2d 424, 429 (Tenn.App.1983). This Court must apply the same standard as the trial court in reviewing the trial court’s decision in an unemployment compensation case. See Armstrong v. Neel, 725 S.W.2d 953, 955 (Tenn.App.1986).

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Bluebook (online)
813 S.W.2d 141, 1991 Tenn. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-traughber-tennctapp-1991.