Wenzl v. Director, Employment Security Department

Sam Bird, Judge. Appellant Craig Wenzl appeals a decision of the Board of Review denying him unemployment compensation. We find that the decision of the Board of Review is supported by substantial evidence; therefore, we affirm. Appellant worked for Anderson Merchandisers in a route-sales job as a “rack jobber,” one who takes the product into the store and personally stocks and arranges the display of the product. His products were music, books, and videos, and his main customer was Wal-Mart. On June 30, 1995, appellant sustained severe injuries when a tractor-trailer truck rolled down a hill and over his company car. He was off work for four months. Appellant testified that when he returned to work in October he was still experiencing a lot of pain, and he found it hard to keep up with his job. He said the company had a trainee working his route while he was off and helping him when he returned. Nevertheless, none of his merchandise had been ordered while he was out, and his route was in a “real mess.” Appellant said he didn’t have the energy or the strength to deal with trying to get the route ready for the holidays because it required working fast and carrying a lot of merchandise. Appellant also testified that his take-home pay was reduced because the trainee was getting his commission. Appellant said he mentioned this to his sales manager without results. At the time of his injury, appellant said he was earning a salary of $1,300 a month, plus a $1,122.99 commission. When he returned to work after his injury, he received a salary of approximately $1,384 a month but no commission. Historically, he had received his highest commissions in November and December; his commission check alone for December 1994 was $1,702.08. In January, appellant resigned. He testified that his main reason for resigning was his physical condition; he simply was unable to stand up to the physical requirements of the job. Appellant also testified that he suspected he was going to be fired. He said when his manager, Bill Lutrell, wanted to speak about his territory, Lutrell would talk to the trainee and ignore appellant. Lutrell testified that there appeared to be some confusion about appellant’s role when he came back with regard to the person appellant called a trainee. He said after appellant’s accident, the man was assigned appellant’s territory and was no longer considered a trainee. He explained that when appellant returned to work he was not assigned a territory because “he was not ready to accept the territory, and he said so even himself.” Lutrell said: And the basic agreement was that when he was ready, and this was [what] we were planning after Christmas, sometime in January or February 1st, that he would be reassigned the territory, and since he was not assigned the territory, Todd [the man appellant called the trainee] was assigned the territory. Todd did receive all the commissions for that. Lutrell said appellant never complained to him about not getting his commission, and that appellant did not give himself or the company an opportunity to see if he could work a territory alone. Lutrell said it was his intention to assign appellant to a territory around February 1 and give him some help to see if his physical problems were temporary, and, if not, deal with it at that time. He said he never had any intention of firing appellant. Arkansas Code Annotated section 11-10-513 (Repl. 1996) provides in pertinent part: (a)(1) If so found by the director, an individual shall be disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work. (b) No individual shall be disqualified under this section if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification or, if, after making reasonable efforts to preserve job rights, he left his last work because of illness, injury, pregnancy, or other disability. Good cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). What constitutes good cause for leaving employment is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996). On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. ll-10-529(c)(l) (1987); Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Indus. Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Feagin v. Everett, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.; Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Appellant’s superior, Lutrell, said he intended to give appellant back a route around the first of February and see if appellant could handle it physically. However, appellant resigned before Lutrell had an opportunity to find appellant a new route or communicate his intentions to appellant. Lutrell testified, and appellant admitted, that appellant never inquired whether the company had any plans for returning him to a sales route of his own. The dissenting opinion relies upon Ladish v. Breashears, 263 Ark. 48, 563 S.W.2d 419 (1978), to support its contention that this case should be reversed because appellant experienced a substantial cut in pay. But in Ladish the court recognized that the issue presented was a question of fact, and, of course, it is well settled that factual determinations of the Board of Review must be affirmed if supported by substantial evidence. Victor Indus. Corp., supra. The dissent’s statement that when appellant returned to work he received only 57% of his former pay is misleading. The record reveals that appellant actually experienced a slight increase in his base salary (from a monthly average of $1,300 to $1,384) after his return to work. He did not, however, receive the commissions on sales because the commissions were being paid to the person who was assigned temporarily to take appellant’s place while appellant was, admittedly, physically unable to do the job. The Board of Review’s finding that appellant left his last work without making reasonable efforts to preserve his job rights is supported by substantial evidence. Affirmed. Arey, Jennings, Rogers, and Griffen, JJ., agree.