Phys.Therapy Works, Inc. v. VEC & Carla Kinsman ( 2002 )

Tuesday 28th
May, 2002.
Physical Therapy Works, Inc., Appellant,
against Record No. 2777-00-1
Circuit Court No. CH99-463
Virginia Employment Commission and
Carla A. Kinsman, Appellees.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray,
Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee
Randolph A. Raines, Jr. (Ferguson, Rawls,
MacDonald & Overton, on brief), for
appellant.
Lisa J. Rowley, Assistant Attorney General
(Randolph A. Beales, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; John B. Purcell, Jr., Assistant
Attorney General, on brief), for appellee
Virginia Employment Commission.
No brief or argument for appellee Carla A.
Kinsman.
By memorandum opinion, a divided panel of this Court
affirmed the judgment of the trial court. We subsequently granted a
rehearing en banc upon such appeal and stayed the mandate of the
panel decision.
Upon rehearing en banc, it is ordered that the October 16,
2001 mandate is vacated, and we reverse the judgment of the trial
court for the reasons set forth in the panel dissent.
Judges Benton, Elder, Annunziata, Frank and Humphreys
dissent for the reasons set forth in the majority opinion of the
panel.
This order shall be certified to the trial court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
-2 -
Tuesday 20th
November, 2001.
Physical Therapy Works, Inc., Appellant,
against Record No. 2777-00-1
Circuit Court No. CH99-463
Virginia Employment Commission and
Carla A. Kinsman, Appellees.
Upon a Petition for Rehearing En Banc
Before the Full Court
On October 25, 2001 came the appellant, by counsel, and
filed a petition praying that the Court set aside the judgment
rendered herein on October 16, 2001, and grant a rehearing en banc
thereof.
On consideration whereof, the petition for rehearing en
banc is granted, the mandate entered herein on October 16, 2001 is
stayed pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule
5A:35. The appellant shall attach as an addendum to the opening brief
upon rehearing en banc a copy of the opinion previously rendered by
the Court in this matter. It is further ordered that the
-3 -
appellant shall file with the clerk of this Court twelve additional
copies of the appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
-4 -
COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
PHYSICAL THERAPY WORKS, INC.
MEMORANDUM OPINION * BY
v. Record No. 2777-00-1 JUDGE ROBERT J. HUMPHREYS
OCTOBER 16, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
CARLA A. KINSMAN
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Randolph A. Raines, Jr. (Ferguson, Rawls, MacDonald
& Overton, on brief), for appellant.
Lisa J. Rowley, Assistant Attorney General (Mark L.
Earley, Attorney General, on brief), for appellee
Virginia Employment Commission.
No brief or argument for appellee Carla A.
Kinsman.
Physical Therapy Works, Inc. (PTW) appeals a decision of the
circuit court which, in turn, upheld a decision of the Virginia
Employment Commission (Commission) awarding Carla A. Kinsman
unemployment benefits. PTW contends that Kinsman voluntarily reduced
her employment without good cause and is therefore barred from
receiving unemployment benefits. For the reasons that follow, we
affirm the decision of the circuit court and the Commission.
"Initially, we note that in any judicial proceedings 'the
findings of the commission as to the facts, if supported by evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for
publication.
-5 -
and in the absence of fraud, shall be conclusive, and the
jurisdiction of the court shall be confined to questions of law.'"
Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d
207, 209 (1988) (quoting Code § 60.2-625(A)).
"In accord with our usual standard of review, we 'consider the
evidence in the light most favorable to the finding by the
Commission.'" Wells Fargo Alarm Svcs. v. Va. Empl. Comm'n, 24
Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (quoting Virginia
Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App.
621, 626, 359 S.E.2d 552, 554 (1987).
PTW has not alleged an issue of fraud with regard to the facts
of this matter. Furthermore, we find the facts as found by the
Commission and adopted by the circuit court to be supported by the
record.
Kinsman had been a home healthcare employee for PTW from July 6,
1996 through June 22, 1999. In her original employment capacity with
PTW, Kinsman worked twelve months per year, on a full-time basis,
providing care to older patients in their homes.
By the end of 1998, Kinsman determined that working full-time
was too much for her and wanted to spend more time at home with her
children. Kinsman became aware that there were other employees with
PTW who were working on a ten-month per year basis, working with
school age children during the time that the public schools were in
session. PTW informed Kinsman that such a position was available to
her, and Kinsman took the new position in January of 1999. At that
-6 -
time, PTW removed her home health care clients and assigned them to
other employees.
In her new position, Kinsman was given the option of being paid
on a ten-month or twelve-month basis. She initially elected to be
paid on the twelve-month basis, but soon found the portion of wages
that would have to be withheld from her paycheck to allow her to
receive pay during the summer months was more than she could afford.
Accordingly, Kinsman requested to return to her previous position.
After being told by PTW that this would not be possible, she
requested and was granted a ten-month pay schedule, which would allow
her to receive the same amount of money each month (with the
exception of the summer months) that she had earned in her previous
twelve-month position.
On June 22, 1999, Kinsman's work ended with the school year.
Kinsman was aware at that time that PTW might have some available
part-time work and she requested it; however, PTW informed Kinsman
that there was no part-time work available. It was at that time that
Kinsman filed her claim for unemployment benefits.
Kinsman was found eligible and qualified for benefits pursuant
to the initial decision of the deputy commissioner. PTW appealed
claiming that although Kinsman was eligible for benefits under the
Unemployment Compensation Act, she was not qualified to receive
benefits pursuant to Code § 60.2-618(1). The appeals examiner found
that Kinsman had neither separated from work voluntarily, nor
separated from work due to misconduct, and that she was therefore
-7 -
qualified to receive benefits according to the statute at issue. The
full Commission affirmed the decision of the appeals examiner.
PTW then appealed the Commission's decision to circuit court
pursuant to Code § 60.2-625. After receiving further memoranda and
oral argument by counsel, the court affirmed the Commission's
decision, finding that PTW had failed to overcome its burden to
demonstrate that Kinsman had voluntarily separated from employment
and that Kinsman was thus qualified to receive benefits under Code
§ 60.2-618(1).
Code § 60.2-618 provides, in relevant part:
An individual shall be disqualified for benefits
upon separation from the last employing unit for
whom he has worked thirty days or 240 hours or
from any subsequent employing unit:
1. For any week benefits are claimed until he
has performed services for an employer (i) during
thirty days, whether or not such days are
consecutive, or (ii) for 240 hours, and
subsequently becomes totally or partially
separated from such employment, if the Commission
finds such individual is unemployed because he
left work voluntarily without good cause.
This statutory scheme for determining a claimant's qualification
for benefits contemplates a shifting of the burden of proof between
the claimant and the employer. See Actuarial Benefits & Design Corp.
v. VEC, 23 Va. App. 640, 644-45, 478 S.E.2d 735, 737-38 (1996).
The claimant has the burden of proving he or she
has met the eligibility conditions of Code
§ 60.2-612. Once a claimant has met this burden,
the burden shifts to the employer to prove that
the claimant is disqualified. Under Code
§ 60.2-618(1), a claimant is disqualified if "he
left work voluntarily without good cause." The
burden is on the employer to prove that the
-8 -
claimant left work voluntarily. If the employer
proves that the claimant's separation was
voluntary, the burden shifts again to the
claimant to prove that he or she left employment
for good cause. Thus, the issue of a claimant's
cause for leaving arises only if the employer
proves that the claimant left his or her job
voluntarily.
Id. (citations omitted).
"Determining whether an employee voluntarily quit without good
cause is a mixed question of law and fact reviewable on appeal."
Snyder v. Virginia Employment Commission, 23 Va. App. 484, 491, 477
S.E.2d 785, 788 (1996). However, as there has never been a
determination of "good cause," PTW challenges only the factual
determination of whether Kinsman voluntarily separated from
employment in January of 1999. We cannot say, based upon our review
of the record, that the evidence as a whole would lead us to the
conclusion that Kinsman voluntarily caused the separation in
employment sufficient to create the need for unemployment benefits.
Indeed, Kinsman continued to work for PTW for 30 to 40 hours per week
until June of 1999, when the school year ended. When that time came,
Kinsman was under the impression that part-time work would be
available to her and she requested such work, but was told by PTW
that part-time work was unavailable.
It was not until that time that Kinsman became at least
partially separated from employment and eligible for unemployment
benefits. Accordingly, as the factual determination of the
Commission is supported by evidence in the record, it is conclusive.
Further, we agree with the trial court's determination that PTW
-9 -
failed to establish that a meeting of the minds existed between PTW
and Kinsman as to Kinsman's status and, thus, that PTW failed to
overcome its burden to prove that Kinsman voluntarily separated from
her employment. Therefore, the decision of the trial court,
affirming the Commission determination, is affirmed.
Affirmed.
- 10 -
Bray, J., dissenting.
Because, in my view, the disputed award is inconsistent with the
intent of the Unemployment Compensation Act (the Act), I respectfully
dissent.
"The purpose of the Act is to provide temporary financial
assistance to [employees] who become unemployed through no fault of
their own." Unemployment Compensation Comm'n v. Tomko, 192 Va. 463,
469, 65 S.E.2d 524, 528 (1951). Thus, Code § 60.2-618(1) provides
that "[a]n individual shall be disqualified for benefits . . . : (1)
. . . if the Commission finds such individual is unemployed because
he left work voluntarily without good cause." Id.
"Determining whether an employee voluntarily quit without good
cause is a mixed question of law and fact reviewable on appeal."
Snyder v. Virginia Employment Comm'n, 23 Va. App. 484, 491, 477
S.E.2d 785, 788 (1996). "The term 'voluntary' connotes
'"[u]nconstrained by interference; spontaneous; acting of oneself
. . . [r]esulting from free choice."'" Shuler v. Employment Comm'n,
9 Va. App. 147, 150-51, 384 S.E.2d 122, 124 (1989) (quoting Barnes v.
Singer Co., 376 S.E.2d 756, 758 (N.C. 1989) (quoting Black's Law
Dictionary 1413 (5th ed. 1979))).
Here, in accordance with the factual findings of the appeals
examiner, "[Kinsman] approached the employer representative about
changing her schedule from full-time to a modified schedule . . .
because of the stress she felt with working with home health care
clients and her desire to spend more time with her children." The
- 11 -
employer acceded to the request, assigning Kinsman to a task that
permitted her to "have off . . . all school holidays, including the
summer break," and reduced her compensation accordingly.
Clearly, therefore, Kinsman sought a reduction in compensable
employment from twelve months to ten. The employer obliged. Thus,
Kinsman voluntarily rendered herself unemployed for two months
annually, conduct which precludes unemployment compensation benefits
from her employer. See Code § 60.2-618(1).
Accordingly, I respectfully dissent.
- 12 -