IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00804-COA BEDFORD CARE CENTER OF MARION, LLC APPELLANT

v. CENITHER NICHOLSON APPELLEE DATE OF JUDGMENT: 05/12/2014 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON JR. COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBIN L. ROBERTS ATTORNEY FOR APPELLEE: CENTHER NICHOLSON (PRO SE) NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: REVERSED DECISION OF THE BOARD OF REVIEW OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, FINDING THAT APPELLEE W A S DISQUALIFIED FROM RECEIVING UNEMPLOYMENT BENEFITS DISPOSITION: AFFIRMED - 01/24/17 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. T h e M i s s i s sippi Departm e nt of Em p loy m ent S ecurity ’s Board of Review ( B o a r d ) af f irm ed the denial of

unem ploy m ent benef

its f ollowing Cenither Nicholson’s term ination f rom Bedf ord Care Cente r o f M arion LLC (Bedf ord Care). T he Circuit Court of Marion County reversed the denial of benef its, f inding that Nicholson did not, when apply ing f or the Bedf ord Care j ob, intentionally m isrepresent whether she had e v e r p r e viously f iled a

w o rkers’ com

pensation claim o r been injured on the job. W e af f irm the circ u i t c o u r t ’ sjudgm ent. FACTS AND PROCEEDINGS BELOW

¶2. In 2008, w hile working as certif ied nursing assistant (CNA) at East Mississippi State Hospit a l (EMSH), Nicholson pulled a m uscle in her b ack while h elping a patient who had f all e n onto the f

l oor. 1 The Hospital paid f or N icholson’s em ergency -room visit and she

m i s s e d two or three d ay s of work. In Septem ber 2012, B edf

o rd Care hired Nicholson a s a CNA. As part of the post-of f er hiring process, N i c h o l s o n f illed out a questionnaire asking if she had ever been injured on the job or f iled a workers’ com

p ensation claim

. She answered

no to these questions. Som e m onths later, a r outine audit of personnel f i les revealed the previous workers’ com

pensation claim on her behalf related to h er em ergency -room visit while emp l o y ed at EMSH. N icholson was term inated f r om B edf ord Care in M ay 2013 f

or the sole reason that she f

alsif ied inf orm ation on her em

ploy m ent application. ¶3. N i c h o l s o n f

i l e d a n u n e mp l oy

m ent claim , which was denied on the b asi s t h a t Nicholson was discharged f o r m isconduct connected w ith her em ploy m ent and was theref

ore disqualif i ed f r o m r eceiving benef

its. Nicholson appealed the denial of h er c laim

. An adm inistrative-law judge (ALJ) conducted a telephonic hearing. At the hearing, concerning the q uestions related t o whether s he had ever f iled a workers’ com

pensation claim , N icholson testif i ed: “ I thought they w as talkin’ about like a pay check, m oney f rom W orkm an’s Com

p. I, I didn’t k

now that like when they send y ou to the d octor, when y ou get hurt, that’s the sam e

1 “E M S H is a ‘ state p sy ch iatric h o sp i tal an d in stitu tio n ,’ estab lish e d i n 1 8 8 2 .” Ivy v. E

. M iss. S ta te H

o s p . , 1 9 1 S o . 3 d 1 2 0 , 1 2 1 n .1 (M i ss. 2 0 1 6 ) (q u o tin g M iss. C o d e A n n . § 4 1

- 1 7 -3 (R ev . 2 0 1 3 )). 2as W orkm an’s Com p. When y ou go to the em ergency room . I didn’t know that.” ¶4. She f

urther testif

ied that she understood the question about whether she had e ver been injured on the job to ref

er to a serious injury that prevented h er f rom working, and that it did not occur to her to report the incident of the pulled back m uscle because i t did not prevent her f r om working. She also testif ied that it blended in with o ther m em ories of her experience working at EMSH where she worked “on a unit where they f ight a lot and we had to break

u p a l o t o f f

i ghts and s om etim e s y ou get scratched up or y ou m i ght get k nocked down or

som ethin’ like that.” ¶5. The Bedf

ord Care adm i nistrator who f ired Nicholson testif

ied that receiving accurate inf orm ation related to past i njuries was relevant to de t e r m ining an applicant’s p hy sical ability to perf orm the job o f nursing assistant. The application and the com pany ’ s em

ploy ee-policy handbook stated that providing f alse inf orm ation on the application w as grounds f or term ination. ¶6. T h e A L J u l t i ma t e l y d e t erm ined that Nicholson was disqualif i ed f rom r ece i v i n g benef its, stating “[ t]he application asked f our s pecif ic questions related to prior injuries and workers’ com

pensation claim s. The claim ant responded in the negative to all[ ,] which would indicate a willf

ul or intentional f

alsif ication of inf

orm ation.” Nicholson appealed the ALJ’s decision to the Board. The Board af f irm ed the decision of

the ALJ. ¶7. N i c h olson then appealed the Board’s af f irm ance of the A LJ t o the Circuit Court o f Lauderdale County

. The circuit court, sitting as an i nterm ediate a ppellate court, reversed the Board, stating:

3[N i c h o l s o n ’ s ] t e s t i m ony dem onstrates that she neither u n d e r s t o o d t

h e q u e s t i o n s being asked on the [ em

ploy m ent application,] nor did she intentionally provide fa l s e i n fo r m ation; theref

ore, she did not intentionally provide f alse inf orm at i o n during the hiring process. In p articular, the c ircuit court r ef erenced Nicholson’s testim ony that s he did not receive any

m oney , that she “didn’t know that going to the doctor was the s am e thing a s Wo r k ma n ’s Com pensation,” and that she thought that the qu estions about w hether she h ad ever been injured on the job were ref erencing a serious injury

that would prevent her f

r om working. ¶8. Bedf

ord Care appeals. DISCUSSION ¶9. Our review of an adm i nistrative a g e n cy ’s f i ndings and d ecisions is lim ited, and an agency ’s conclusions will rem ain undi s t urbed unless the agency ’s decision (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is bey ond the scope of power g r anted to the a gency , or (4) violates the claim ant’s c onstitutional rights. Miss. Emp’t Sec. Comm’n v . Ratcliff

, 754 So. 2 d 595, 597 (¶9) (Miss. Ct. App. 2000). Appeals f rom the Board are governed by M ississippi Code Annotated sect i o n 7 1-5-531 (Rev. 2011), which provides: In any judicial p roceedings under this section, the f i ndings of the Board of Review as to the f

acts, if supported by evidence and in the absence of f r aud, shall be conclusive, and the jurisdiction of said c ourt shall be conf ined to questions of law. “[ A]n order of the Board

. . . on the f acts i s conclusive upon the l ower court, if supported by substantial evidence and i n the a bsence of f

raud, and the s c o p e of review requires the determ ination of the suf

f i ciency of the evidentiary basis of the d ecision.” W heeler v. Arriola ,

4408 So. 2d 1381, 1384 (Miss. 1982).

¶10. “In m isconduct cases, the em ploy er bears the b urden to prove b y s u b s t a n tial, clear, and convincing evidence that a f o rm er e m ploy e e’s conduct warrants disqualif ication of benef its.” Over the Rainbow Daycare v. Miss. Dep’t of Emp’t Sec. , 188 So. 3d 1249, 1251 (¶7) (Miss. Ct. App. 2016). Disqualif y ing m isconduct is “ conduct e v incing s u ch willf ul and wanton disregard of the e m ploy er’s interest as is f

ound in deliberate violations or disregard of standards of behavior which the em ploy er has the rig h t t o e x p e ct f rom his em

ploy ee.” W heeler , 408 So. 2d at 1 382. However, an em ploy ee’s conduct m ay harm the e m ploy er’s interests and justif

y discharge f

rom em ploy m e nt, y e t not rise to the level of willf ul or wanton

so as to invoke disqualif

ication f or unem ploy m ent-insurance benef

its. Acy v . Miss. Emp’t Sec. Comm’n , 960 So. 2d 592, 595 (¶14) (Miss. Ct. App. 2007). ¶11. Falsif

ication o f an em

ploy m ent application can be grounds f or disqual i f

i c a t i o n of benef its. Ratcliff

, 754 So. 2d at 598 (¶14). In Ratcliff , this Court af

f i rm ed the B oard’s 2 denial of unem ploy m ent benef

i ts to a claim ant who f

ailed to disclose that her m ost recent em ploy er

was W alm art when f

illing out a Target application that requested the ap p l i c ant to list previous e m

ploy m ent. Id

. at 596 (¶3). T h e e mp loy e e in R atcliff did not m i sunderstand the question on the application, but rather m ade her own decision that an accurate answer was not relevant. Id

. at 598 (¶17). I n agreeing with the B oard’s c onclusion that Ratclif f’s conduct disqualif i ed her f or unem ploy m ent benef

its, we rejected Ratclif

f ’ s argum ent that “she did not intend to d eceive Target but was only doing what she thought would best inf orm Target of

2 A t th at tim e, th e ag en cy w as kn o w n b y i t s f o r m e r n am e, th e M ississip p i E m p lo y m en t S ecu rity

C o mm i ssio n . 5her relevant work experience within the lim its of the available space on the application.” Id

.

at 596 (¶3). The circuit court had reversed the Board’s denial o f Ratclif f’s benef its, f inding that she had of

f ered a “plausible explanation” f or om itting her prior em

ploy m ent at W alm art. Id

. at 597-98 ( ¶14). In reversing the circuit court, we stated that the “plausible explanation”

was “an im

proper f ocus of the court’s attention” and that the r elevance of th e a p p l i cant’s imm ediately

previous work experience was f or the em ploy er to determ ine. Id

. ¶12. H e r e , N i c h o l s o n d i d n o t understand the application questions abo u t w o r k e r s ’

com pensation to be related to her em ergency -room visit and injury f rom several y ears previously

. Her testim ony a t the hearing supp o r ts that she understood f iling a workers’

com pensation claim t o involve receiving a pay check s u bstitute f or inability t o com e to work, and that s he did not understand her em ploy er’s pay

m ent f o r the em ergency - room v isit to be within the concept o f wor k e r s ’ com pensation. This m isunderstanding f alls short of willf

ul and wanton m isconduct that would disqualif y her f rom receiving unem

ploy m ent-insurance benef its. ¶13. Wh ile Bedf

ord C a r e h a s a legitim ate interest in a s certaining the phy sical ability of prospective CNAs to perf orm their j obs, Nicholson’s conduct in provid i n g a n i naccurate

answer on her application m ust have been willf

ully and wantonly aga i n s t B e d f o rd Care’s interests i n order to disqualif y her f rom receiving unem

ploy m ent benef

i ts. Violation o f

com pany policy can warrant em ploy m ent term ination without, a t the sam e t im e, constituting “m isconduct” f

or purposes o f d isqualif

y ing the em

ploy ee f rom benef

i ts. Miss. E m

p ’ t Sec. Comm’n v. W

oods , 938 So. 2d 3 59, 365 (¶12) (Miss. Ct. App. 2006) (claim a n t ’s f ailure to

6contact em

ploy er f or f ive m onths w hile on m edical leave, in violation o f com pany policy , did not constitute m isconduct). E v e n if Nicholson’s inaccurate answers on her application warranted her dism issal as a violation of com pany policy , they do not rise to the level of “willf ul” or “wanton” so as t o warrant disqualif ication of unem

ploy m ent-insurance benef

its. W e theref ore af f irm the circuit court’s reversal of the Board. CONCLUSION ¶14. W e agree with the circuit court that substantial evidence was not presented below to support that Nicholson acted in such w illf ul or wanton disregard of her em ploy er’s interest that disqualif

ication of unem

ploy m ent benef

its is warranted. W e theref ore af f irm the circuit court’s reversal of

the Board’s denial of

benef its. ¶15. THE JUDGMENT O F THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESS E D T O THE APPELLANT. LEE, C.J., IRVING AND GRIFFIS, P.JJ., B ARNES, ISHEE, C ARLTON AND WILSON, J J., CONCUR. FAIR AND WESTBROOKS, JJ., NOT PARTICIPATING.

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