# FILED
June 20, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

MATTIE BEDFORD, ) ) Plaintiff /Appella nt, ) Shelby Equity No. 1048022-1 ) vs. ) ) MARGARET CULPEPP ER, ) Appeal No. 02A01-9604-CH-00085 Commissioner of the Tennessee ) Department of Employment Sec urity, ) and METHODIST H OSPITAL, ) ) Defendants/Appellees )

APPEAL FROM THE CHANCERY COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE N

EAL SMAL

L, CHANCEL

LOR For the Plaintiff/Appellant : For the Defendant/Appellee, Margaret C. Culpepper, Commissioner of The Tenness ee Depa

rtment of Employ ment Secu

rity : Florence M. Johnson Charles W. Burson Memphis, Tennessee Robert W. Stack Jennifer H . Small Nashville, Tennessee

AFFI RMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

AL AN E . HI GHE RS, J

.OPINION

This is an unemployment benefits case. The Tennes see De partmen t of Employ ment Secu

rity (“TDES”) denied the application of Appella nt Mattie D. Bedford (“Bedford”) for unemployment benefit s on the basis of several instances of employee misconduct and or dere d the re payment of previous ly paid benefits totaling $1,100. After administrative appeals, the Chancery Court affirmed the denia l of benefits and th

e repayment orde

r. We af firm the d ecision o f the Chan

cery Cou rt. Bedford worked as a respiratory therapist at Methodist Cent ral Hospital ( “Methodi st”) in Memphis, Tennessee, from 1981 until the termination of her employment in March 1994. She was assigned to Methodist’s hyperbaric oxygen unit. Treatment in the hyperbaric unit involves placing the patient in a chamber which is then filled with 100% oxygen under high at mo spheric pressure. The potential fire hazard

in such an

environm

ent is extr emelyhigh. The slightest spark could touch off a fire w

hich woul d inciner

ate the p atient a

nd very li k ely destr

oy part of

the hospit

al. Consequently, pati ents en tering the hyperbaric chamber must minimize the danger of fire hazard. To reduce the risk of fi

re, pati ents entering the hyperbaric chamber a re forbidden to wear makeup, hair spray, a nd finger nail polish

because some types of these products can be highly f

lammable in the oxygen- rich, highly press urized e nvironme nt of th e hyperbaric chamber. Bedford’ s responsibilities included seeing that patients were properly prepa red for entry into

the chamber for treatme nt. Methodist’s written pol ic ies rega rding the prepar ation of p atients f

or the hyp erbari c chamber proscribed patients wearing makeupand finge rnail poli sh from the chamber. In addition, every therapi st

was required to go through written guidelines with each patient every time treatment

was administered in the hyperbaric unit. The guidelines inc lu ded the removal of makeup and fingernail polish. Bedford was aware of Methodist’s procedures a nd was aware

of the guidelines requiring the removal of makeup and fingernail polish. She had had twelve years of expe rience and had

gone through several training cour ses related to working with a hyperbaric unit. It was Bedford’s understanding that w ater-ba sed makeup posed no threat of fire in the chamber . It was also her understanding that the vapors from an alcohol swab used to remove finger nail po lish c ould const

itute

a bigger hazard than allowing the patient to keep the polish on, especia lly if the fingernail polish had notbeen re cently a

pplied. H owever , Methodis t’s proce dures fl atly req uired the removal of all makeup and fingernail polish, with no exceptions. On March 16, 19 94 , Bedford allowed a female patient to enter the hype rbaric chamber2

wearing both makeup and fingernail polish. While the patient was in the chamber, the second-shift supervisor, Laquita Rallings (“Rallings”), entered the room and noticedthe patient with makeup and polish on. Rallings testified that she told Bedford never to let a patient go into the chamber again wearing makeup and polish. Bedford denied t hat Ra llings told her this. According to Bedford, Rallings told her that the patient was mad at Rallings for previously warning the patient not to wear makeup into the ch amber, a nd that Rallings then

turned to another therapi st and sai d that the y all should start telling patients the same thing. On the same

day, Ralli ngs saw Be dford wit h another patient, Mr. Hill. M

r. Hill was finished withhis therapy and waiting in a whee lchair to be taken back to hi s room. In Mr. Hill’s presence, Bedford told an order ly to “push

Mr. Hill do wn the ele

vator sha ft.” Rall ings consi dered th

is to be

an inappropriate comment but did not want to correct Bedford in front of another ther apist who was present . The next day, while Bedford was on duty, Rallings discovered the same female patient as on the previous day, once again in the hyperbaric c hamber weari ng makeup and polish. Rallings confronted

Bed ford, wh o resp onded by telling Rallings that she did not know as much about the hyperba ric chamber as did Bedford, and that she, Bedford, had been told that some types of makeup could be worn into the chamber. Rallings told Bedford that her action constituted insubordination because Bedford disregarded Rallings’ direct order given only the day before. Rallings also confronted Bedford with the comment Rallings overheard Bedford make about pushing a patient, Mr. Hill, “down the elevator shaft.” Bedford said that the comment was a joke and that Mr. Hill had understood that because she often joked with him. Rallings insisted that the comment was inap propria te and tha t it could ha

ve been damaging

to Methodist had it been overheard by a passerby. The comment was especially egregious in light of Methodist’ s recen

t effort s to polish its public image. Under Methodist’s disciplinary policies, an employee may be discharged upon the third d isciplin ary infraction committed within two years. Prior to the above incidents, Bedford had committed her third infraction, but had been suspended without pay instead of being dischar ged. Her inappropr iate comment and her d isregar d of the r equirem ents for patients e ntering th e hyperb aric1 Bedford’s previous infractions, as found by TDES, were f or “inappropriate behavior and excessive unauthorized call time.” 3 chamber were her fourth and fifth infrac tions within a two-y ear period

. 1 As a result, Rallings suspended Bedford

and aske d her toreturn the next day to speak with the Director, Douglas Stover. When Bedford returned on the 18th, Stover informed her that he r employment was being terminated. The following

month , Bedford applied with TDES for unemployment benefits. TDES i nitially approved the claim, based on Bedford’s application. Methodist appea led, arguing tha t Be df ord was ineligible to receive benefits because she had been terminated for misconduct. A hearing was held, and TDES heard testimony from Bedford, Rallings, and Tommy Mangrum, the f irst-shiftsupervisor. After the hearing, TDES ruled in Methodist’s favor, re versing the award o f benefit s and orde ri ng Bedford to pay back $1,100 in benefits already paid out to her. Bedf ord appealed, and both the TDES Board of Review and the Chanc ery Cour

t affirm ed the de cision in favor of Methodist. Bedford

now appe als to this Co

urt. On appeal, Bedford

argues t hat she di d not commit

misconduct sufficient to disqualify her from receiving unempl oyment be nefits. E ven if thisCourtaffirms her disqu alifica tion for b enefits, Bedford contendsthat the o rder to r epay $1, 100 in ben efits was arbitra ry and ca pricious and should be reversed. The s tandard

of revie w to be ap

plied by th

e chanc ery cour

t is set out i n Tennes s ee Cod e Annotate d § 50-7-3 04, which providesin pertine

nt part: (2) The cha

ncellor may aff irm the deci s ion of the board or the chancellor may reverse, remand

or modify

the deci sion if the

rights of the petitioner have been prejudiced

because the admin

istrative findings, infere

nces, conclusions or decisions are: (A) In vi olation of constituti onal or st

atutory p rovisions ; (B) In excess of the statutory authority of the agency; (C) Made upon unlawful procedure; (D) Arbitrary or

capric ious or ch aracte

rized by abuse of discreti on or cle arly unwarranted exercise of discre tion; or (E) Unsuppor

ted by evi dence w

hich is bot

h subst ant ial and material in the light of the entire record. Tenn. Cod

e Ann. § 50 -7-304( I)(2) ( Supp. 1996) . The stat ute furth er provi des: (3) In determining the substantiality of evidence, the chancellor shall take into account whatever in the record fairly de tracts f rom its weight, but the chancellor shallnot substitute the chancellor’s judgment for that of the boa

rd of review as to

the weight of the evidence o n question s of fac t. No dec is ion of th e board shall be reversed, remanded or modified by thechance llor unles s for errors which affect the4

merits of the final decision of the board. Id. § 50-7-304(I)(3) (Supp. 1996). The same standards of review used by the

chance ry court apply to this Court. Armstrong v. Neel , 725 S.W.2d 953, 955 & n.1 (Tenn. App. 1986). In sum, this Court reviews “the ent

i re rec ord, incl

uding any proof tha t fairly d etractsfrom the a

gency’sdecision , to determine whether

it is arbitr ary, ca pricious , characterized by an abuse of discretion, or unsupported by substantial and material evidence.” Id. at 955. Bedford first ar

gues that the rec ord does n ot contai n substant ial and ma

terial evidence

to support the finding that she committed misconduct which would warrant a denial of unemployment benefit s. The statute does not define “substantial and material evidence .” However, in Southern Railway Co. v. State Board of Equ a li zation , 682 S.W.2d 196, 199 (Tenn. 1984), the Tennessee Supreme Court stated that evidence is substantial and mate rial if it i s releva

nt, if a reasonable mind would accept it as support f

or a rat ional conclusion, a

nd if it provides a reasonably sound basis for the action being considered. See Ogrodowczyk v. Tennes see Bd. f or Licensing H

ealth Care Facilities , 886 S.W.2d

246, 251 ( Tenn. Ap

p. 1994). Substantia

l and materi al evidence “requires something less than a preponderance of the evide nce but more than a

scintilla or glimmer.” Wayne County v. Tennes

see Solid Waste Disposal Control Bd. , 756 S.W.2d 274, 280 (Tenn. App. 1988) (citation omitted). Under Tenness ee statu

tes, an a pplicant is disquali fie d for unemployment benefits “[i]f the commissioner

finds tha t a claimant has been discharged from such claimant’s most rece nt work for misconduct

connected with such claimant’s work.” Tenn. Code Ann. § 50-7- 303( a)(2) (Supp. 19 96). The misconduct must breach a duty which theemployee owes tohis employ er, as op posed to so ciety in general. Weaver v. Wallace , 565 S.W.2d 867, 870 (Tenn. 1978). In addition, the emplo yee must be at fault. McClellan v

. Bible , 699 S.W.2d 555, 5 56 (Tenn. 1985). In Armstrong v. Neel , 725 S.W.2d 953 (Tenn. A

pp. 1986) , this Court

defined misconduct under th

e statute as: conduct e vincing su ch wilful

and want on disreg ard of a

n employe

r’s inter ests as is fo und in deliberate violations or disregard of standards of behavior which th e employer has the right to expect of his employee, or in carelessness or negligence of such degr e e or rec

urrenc e as to ma

nifest eq ual culpa bility, wr ongful int ent or ev il design, or to show an intentional and substantial disregard of the employer’s interest s or of the employee’s duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of5

inability or incapacity, inadvertences or ordinary negligence in isolated instances, or good faith errors in judgmen

t or discr etion ar e not to be deeme d “miscon duct” wit hin the meaning of the statute. Id. at 956 (quoting Boynton Cab Co. v. Neubeck , 296 N.W. 636, 640 (1941)). In this case, the record contains substantial and material evidenc e from wh

ich TDES c ould conclude that Bedford w as guilty of misconduct. There is no dispute that Bedford’s actions were work related. She owed

a clear duty to Methodist to follow its rules and procedures regar ding the preparationof patie nts for the hyperba ric unit. T

he safe ty policie s were in

place to prevent a catastrophic accident in the chamber. The se policies included a clear directive: 4. All cosmetics, oils, powder, lotions, and deodorant must [be] removed from the patient’s body and hair before entering the HBO cha mber. Although Bedford testified that she had never seen this written policy befor e, she admitted that

she

was familiar with the patien t guidel ines and with a simila r rule re garding n on-compl iant patie nts. In addition, Rallings te st ified th at, the day before, she had warne d Bedford about the necessity of removing makeup be

fore pla cing a pa tient in the

chamber . Clearly , there w as suffic ient evid e nce for TDES to find that Bedford “had a checklist [guidelines] which was used before each

treatme nt, butshe had a

lways all owed pat

ients to en

ter the H BO unit with

minimal mak

eup and f ingerna il polish on, even though the checklist required removal.” Bedford ex plain ed that she allowed the patient to enter the chamber with make up and fingern ail polish because it was her understanding that water-based makeup posed no threa t and that it would have been danger ous to remove the fingernail polish because of the vapors emitted fr om the alcohol usedin removal. Regardless of Bedford’s reasons, she knew the hospital’s policies were putin place

to protect the patient and the hospital, had bee n specif ically tol d not to per

mit patien

ts t o wear any makeup, and yet knowingly and intentionally flouted those rules the day a fter be in g warned about them. In affirming TDES’s decision, the Chancer y Court stated: You know, you

get to the point whe

re you ar e dealin g with some

thing that will kill people and it can kill people and it has on numerous occasions killed people. You don’t second- guess what [sa

fety] po sition or pl an has be en laid down. You follow it. * * * We certain

ly want to encoura ge ever ybody tha t has the b enefit

of experience an d training to make that known but you make that known by going to the pr ope r authoriti es, the autho

rities tha t establi sh policy an d try to pr evail upo n them to change the policy. You don’t just ignore the policy because if you do then everybody is operati ng on a dif

ferent wavele ngth and all bases are not being covered and things -- terrible things can happen.6

Bedford’s duty was to follow the procedures set forth in the hospital pol icies and the patient guideline s. Her willful refusal to do so constituted misconduct which di s qualified her for unemploym

ent benefits. Bedford argues t

hat, eve n if the de nial of be nefits is a ffirmed , she still s hould

not have been ordered to repay the $1,100 in benefits initially paid to her. The repayment of overpaid benefits by the recipient

is provided for in Tennessee Code Annotated § 50-7-303(d)( 1), whichstates that “[a]ny person who is ove

rpaid an y amounts a s benefits under t his chapt er is liab le to rep ay those a mounts, except as otherwise provided by this subsection (d) o r by § 50-7-304(b)(2).” Tenn. Code Ann. § 50-7-303(d)(1) (Supp. 1996). Repay ment may be waived by the Commissioner of Employment Security. Tenn. Code Ann. § 50 -7-303(d)(2) (Supp. 1996). Waiver is appropria te only when the recipient did not commit fraud, misrepresentation, or willful nondisclosure to procure payment, the overpayment

did not occur because of

some fault on the part

of the recipient, and “the recover y of the overpayment . . . would be against equity and good conscience.” Id. All three criteri a must

be met in order for repaymen t to be waived. Id. The rec ord in this c ase cont ains no ev

idence t o establish that it would be aga

inst equity

or good c onscienc e for Bed ford to be require d to pay back the benefit s initially p aid her b y TDES. The refore , requir

ing repa yment of h

er over paid bene fits is appropriate. The decision

of the tri al court

is affirmed. Costs are assessed against Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

ALAN E. HIGHERS, J.