dissenting. I respectfully dissent because I believe that appellant’s conduct did not rise to the level of a wrongful intent, evil design, or an intentional disregard of the employer’s interest. Therefore, I would reverse and remand for the award of benefits.
The facts are as follows. Appellant had worked for the employer for approximately sixteen years. She had been an LPN for more than twenty-two years. At the time of her termination, she worked the night shift, from 11 p.m. to 7 a.m. On October 14, 2002, between 5 and 6 a.m., appellant checked on a particular patient and did not hear any bowel sounds. She made an entry into the patient’s chart accordingly. She talked to the patient, and the patient told her that she was fine, even though she was moaning throughout much of the night. Appellant took the patient’s other vital signs and recorded them, but she did not call anyone else. On the next shift, appellant’s supervisor checked the same patient again and noted bowel sounds. However, later during that same day, the patient had to be delivered to a hospital for renal failure. The supervisor counseled appellant, and, subsequently, the executive director of Beverly Health conducted an investigation which resulted in appellant’s termination.
Appellant then applied for, but was denied unemployment benefits. She appealed to the Arkansas Appeal Tribunal, which reversed the denial of unemployment benefits. During the telephone hearing, Glenn Clark, the executive director of Beverly Health, testified that appellant failed to follow company rules when she noticed that the patient in question had no bowel sounds, but did not take any further steps other than to record it in the chart. The procedures applicable when a nurse notices a lack of bowel sounds in a patient requires that the nurse call another nurse as a backup. If the second nurse also cannot hear any bowel activity, then a physician must be called immediately. The nurse must also contact the patient’s family and the director of nursing services.
Clark testified that his employees are aware of these rules through in-service training and job descriptions. He stated that appellant never had a problem of this nature in the past. However, he mentioned an earlier incident in which appellant allegedly had failed to bring to her supervisor’s attention a threat made by a nurse colleague toward a resident. On cross-examination, he also admitted that appellant had voiced concerns about salary in the past. Nonetheless, Clark explained that the only reason for termination was appellant’s failure to follow the bowel-sound procedure in the single event before her discharge. Beverly Health reported the incident to the Office of Long Term Care, which allegedly reported it to the State Board of Nursing.
Appellant testified that she had no previous disciplinary actions. She admitted that she did not report the lack of bowel sounds and offered her opinion that elderly people sometimes do not have bowel sounds and that there could be many reasons for that. She maintained that her actions that night were appropriate because the patient was not in distress. She emphasized that no one ever told her that nurses have no discretion in determining whether or not a patient was in distress. She also admitted that she did not attend the in-service training in August, and she added that no one ever said anything to her about it. She admitted that a few years earlier she had been written up for not attending in-service. Appellant claims that Clark treated her differently after she had discussed salary concerns with him prior to the incident that led to her termination.
After the Appeal Tribunal ruled in favor of appellant, her employer appealed to the Arkansas Board of Review, which reversed the Appeal Tribunal, with the result of denying appellant’s unemployment benefits. Appellant then launched this appeal to our court.
Our scope of appellate review in cases such as this is well-settled:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Fleming v. Director, Ark. Emp. Sec. Dep’t, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001); see also Ark. Code Ann. § 11-10-529(c)(1) (Repl. 2002) (stating that the Board’s findings are conclusive, absent of fraud, if supported by evidence). The credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, Ark. Emp. Sec. Dep’t, 67 Ark. App. 109, 992 S.W.2d 169 (1999).
Arkansas Code Annotated section ll-10-514(a)(l) (Repl.2002) provides that an individual “shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.” The employer has the burden of proving misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983). Misconduct is defined as: (1) disregard of the employer’s interests; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect of his employees; (4) disregard of the employee’s duties and obligations to the employer. Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). There is an element of intent associated with a determination of misconduct on the part of the employee. Oliver v. Director, Ark. Emp. Sec. Dep’t, 80 Ark. App. 275, 94 S.W.3d 362 (2002). Therefore, mere unsatisfactory conduct, ordinary negligence, or good faith errors in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Niece v. Director, Ark. Emp. Sec. Dep’t, 67 Ark. App. 109, 992 S.W.2d 169 (1999). Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question to be decided by the Board. Id.
Before the backdrop of our law, I maintain that the Board of Review’s decision to deny unemployment benefits based on a finding of appellant’s misconduct in connection with the work is not supported by substantial evidence. As we held in Niece v. Director, supra, mere unsatisfactory conduct, ordinary negligence, or good faith errors in judgment or discretion are not misconduct sufficient to deny unemployment benefits. Here, appellant applied her long-standing experience as a nurse and decided that no further action had to be taken regarding the patient who had no bowel sounds. She talked to the patient and she was aware of the fact that elderly patients may have temporary lack of bowel sounds. The next nurse checking on the patient found bowel sounds. That same patient was delivered into the hospital for renal failure only later in the afternoon following appellant’s early-morning check. Furthermore, even though the employer later testified that appellant’s failure to take further steps was against company policy, it also appears that appellant had never been found in violation of that policy before. In addition, the employer admitted that appellant had been dismissed solely for the failure to follow the “bowel-sound” policy.
As such, we are faced with a one-time error at best and I am at a loss how this should constitute conduct of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Appellant’s error in judgment ostensibly may not have helped the patient in question, particularly in light of the fact that the patient later was indeed delivered to the hospital for renal failure. However, even if that was a mistake, it was one that did not happen repeatedly. Similarly, it does not appear that the mistake was borne of any wrongful intent or evil design or any disregard of the employer’s interest. The mistake was based fully on appellant’s nursing expertise and what amounts to a misjudged situation. Nothing in the employer’s testimony appears to contradict that. The employer could not point to anything that would tend to prove that appellant acted with any intent whatsoever. Therefore, I would reverse and remand for an order to pay unemployment benefits.
I am authorized to state that Judges Gladwin, Baker, and Roaf join this dissent.