Western Sizzlin of Russellville, Inc. v. Director of Labor

James R. Cooper, Judge,

dissenting. Our function in Employment Security Division cases is to determine whether the record contains substantial evidence to support the decision reached by the Board of Review. Swan v. Stiles, 16 Ark. App. 27, 696 S.W.2d 765 (1985). The Board’s findings are conclusive on appeal if supported by substantial evidence. Cooney v. Daniels, 270 Ark. 930, 606 S.W.2d 615 (Ark. App. 1980). Even where the evidence is undisputed, the drawing of inferences is for the Board, not the courts. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980). We are not permitted to hear the case de novo by substituting our findings for those of the Board. Id.

The facts of this case are simple. The claimant testified that she had been warned that she would be terminated if she missed another day of work. Subsequently, she did miss another day of work because of drug addiction for which she was later treated in a clinic. She did not notify her employer that she would be unable to report for work because she was so disoriented by the drug that she did not know what was happening. There was no one with her that could have notified her employer.

The Board found that, because of the drug, the claimant could not think clearly and did not realize that she should notify her employer that she would be unable to report to work. The Board concluded that the claimant’s drug abuse was an illness and that her efforts to preserve her job rights were reasonable under the circumstances.

I think it apparent that reasonable minds could conclude that a condition requiring clinical treatment and therapy is an illness. It seems equally apparent that failing to contact one’s employer is all that can be reasonably expected of a person who is so disoriented that she does not know what day it is, or what is happening around her.

Our review should end at this point with affirmance. The majority, however, has departed from the substantial evidence standard of review and has, in effect, tried this case de novo and found that the claimant was not so disoriented by her addiction between June 5,1987, and August 22,1987, that she was unable to recognize the implications of her drug abuse with respect to her employment and communicate her problem to her employer. If this issue must be resolved before this case can be decided, we should remand it to the Board with directions to make the appropriate findings. See Massey v. Barnes, 1 Ark. App. 329, 615 S.W. 2d 398 (1981). That is the exclusive province and function of the Board, which we may not usurp. See Willis Johnson Co. v. Daniels, supra. I dissent.