RENDERED: June 20, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001111-MR
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 01-CI-00579
NGA NGUYEN-TRAN and TOPY
CORPORATION APPELLEES
& NO. 2002-CA-001154-MR
TOPY CORPORATION APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 01-CI-00579
NGA NGUYEN-TRAN and
KENTUCKY UNEMPLOYMENT INSURANCE
COMMISSION APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, McANULTY, and PAISLEY, Judges.
COMBS, JUDGE. The Kentucky Unemployment Insurance Commission
(Commission) and Topy Corporation (Topy) appeal from an order
entered by the Franklin Circuit Court on May 10, 2002, which
reversed the Commission's decision denying unemployment benefits
to the appellee, Nga Nguyen-Tran (Tran). The Commission and
Topy contend that the Commission's decision was supported by
substantial evidence and that the circuit court erred in
substituting its opinion for that of the Commission. Topy also
challenges the jurisdiction of the circuit court at the
threshold level. Having reviewed the record, we find no error.
Thus, we affirm.
Tran was employed by Topy in November 1997. She was
assigned to move steel posts, work that was too demanding for
her physically and which caused her considerable pain. After
complaining to her supervisors, she received lighter work.
Because of a shortage of other workers, Tran was later re-
assigned to her original work area. Near the end of September
2000, Tran told her employer that she could no longer perform
the work. She agreed to continue the job for two weeks. On
October 13, 2000, Tran consulted a doctor about the symptoms she
was suffering as a result of the heavy manual labor she was
performing. She returned to work with a statement from the
doctor containing several restrictions, which included no
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lifting, pulling, or pushing anything weighing more than ten
pounds. Hoping to be assigned to lighter work, Tran was instead
told to turn in her uniform and to sign a "quit job paper."
On October 23, 2000, Tran filed a claim for
unemployment benefits. On November 8, 2000, the Division of
Unemployment Insurance (Division) issued a notice of
determination finding that Tran had voluntarily quit her
employment without good cause and that she was disqualified from
receiving benefits.
She appealed that determination to an unemployment
insurance referee. The referee conducted a hearing on two dates
-- December 4, 2000, and February 19, 2001. Topy did not offer
any evidence on the first day and did not send a representative
to the second day of the hearing. Finding that Tran was
entitled to unemployment benefits, the referee held as follows:
[W]ithout notice or explanation, claimant
was moved to the input area to move steel
case wheels on to a conveyor belt on or
about the end of September 2000.
Immediately into the job, claimant began to
develop headaches, pain in her arm, and
shoulder. Claimant complained to Tommy
Sharp, line leader, that she could not
perform the duties in the input area. The
work was hard with the continuous lifting
and pulling of her muscles. Claimant
continued to complain and was told to
perform her job.
Within days of claimant's last day of work,
she again made it known to Mr. Peacock
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[Tran's supervisor] and Jim Nelson,
personnel manager, her pain was unbearable
to continue working, but management would
not listen to claimant's request. On
October 13, 2000, claimant's pain did not
diminish. Claimant scheduled an appointment
with Health Works. Claimant was placed on
restrictions of no lifting and no lifting
over the shoulders. Claimant was advised to
seek physical therapy and prescribed
medication to relieve her pain.
Claimant's last plea to be transferred to
her regular position was not acknowledged.
Again, management would not adhere to her
request. Claimant realized she had no other
choice but to sever her employment effective
October 13, 2000.
DECISION: The determination is set aside.
Claimant voluntarily left the employer with
good cause attributable to the employment
and is not disqualified from benefits. . . .
. . .
A worker acts reasonably, and with good
cause, when quitting unsuitable work. A
quitting occasioned by the unsuitability of
work is attributable to the employment.
Work becomes unsuitable whose character is
unilaterally altered by the employer to the
material disadvantage of the worker.
In this case, the claimant's employment
dramatically changed when Mr. Peacock
assigned claimant duties that resulted in
severe pain in her left arm. Claimant
experienced headaches, illness, and was
placed in therapy and prescribed medication.
The employer was not present to provide
testimony. In the absence of the employer,
the claimant has met the burden of proof
that the working conditions were unsuitable.
Within the meaning of the law, it is held
the claimant voluntarily quit with good
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cause attributable to the employment.
(Emphasis added.)
Topy appealed the referee's decision. The Commission
entered its own findings of fact, reversing the referee and
concluding that Tran did not quit for good cause:
In late September 2000, [Tran] was assigned
to the sanding area, a lighter duty job, for
two shifts. Then she was reassigned to
inspecting for two shifts. Thereafter she
was reassigned to the input area. She again
complained to Mr. Peacock and to Mr. Nelson,
personnel manager, that she could not
continue to work in the input area because
the job was causing her pain. Mr. Nelson
recommended that she see a doctor for
treatment. Claimant did not attempt to see
a doctor then because she did not want to
miss work to do so. By missing work she
thought she would lose an attendance bonus
day. Claimant continued to work until the
morning of October 13, 2000, when she quit
the employment.
After she had already quit the employment,
claimant saw a doctor on the afternoon of
October 13, 2000. He treated her for muscle
strain of her left arm and shoulder and
placed restrictions on her activities of no
lifting over ten pounds, no pushing or
pulling over ten pounds and no lifting above
her left shoulder. Thereafter she returned
to the work site to give the employer paper
work from the doctor's office. She made no
attempt to return to work.
. . .
In this case, claimant quit her job on the
morning of October 13, 2000 before seeking
medical treatment. She had not been
medically advised to quit the employment.
Although the work in the input area may have
caused her physical problems the evidence is
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insufficient to show that she had no
reasonable alternative to quitting the
employment. If she had gone to the doctor
earlier, as recommended by the personnel
manager, she possibly could have returned to
the employer with a statement of her medical
restrictions and been placed on lighter duty
work until released from restrictions by the
doctor. Instead of going to the doctor
earlier, as recommended by the personnel
manager, claimant chose to remain working
rather than risk losing an attendance bonus
day. If she were truly unable to do the
assigned work, she surely would have gone to
the doctor earlier. She has failed to prove
that she had good cause attributable to the
employment for quitting her job. (Emphasis
in original.)
The Commission held that Tran was not entitled to unemployment
benefits and ordered that she repay the Division the sum of
$6,996.00.
The Commission's order was mailed to Tran on April 17,
2001. She requested reconsideration. The Commission denied her
motion in an order entered April 24, 2001. Both orders set
forth Tran's right to seek judicial review within twenty days as
provided by KRS1 341.450(1). On May 14, 2001, within twenty days
of the Commission's last order, Tran filed a verified complaint
in the Franklin Circuit Court seeking review of the Commission's
decision.
The appellants immediately moved to dismiss the appeal
as untimely. They contended that Tran was required to seek
1 Kentucky Revised Statutes.
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judicial review within twenty days of the Commission's original
decision rather than twenty days from the subsequent order
denying the motion for reconsideration. Their argument was
based on 787 KAR2 1:110, §3(6)(b), which reads:
An application for reconsideration of a
decision of the commission shall not stay
the running of time for appeal to the
circuit court if the application is denied.
Because Tran's complaint was filed more than twenty days after
the original order, the appellants argue that the circuit court
was compelled to dismiss the appeal.
In an order entered on June 28, 2001, the court
rejected the appellants' argument, finding that the
administrative interpretation of the pertinent regulation was
arbitrary and that it violated Tran's right to due process. It
also determined that KRS 341.450 was ambiguous with respect to
which decision should be used for appeal purposes, holding that
the pertinent statute could not be construed to bar the appeal.
After disposing of the jurisdictional hurdle, the
court then reversed the Commission as to the merits of the
appeal. In a thorough and well-reasoned opinion, the court
concluded as follows:
The Commission's Order denying benefits
focuses on the fact that Tran went to the
doctor only after she quit. The Commission
did not consider whether the injury to Tran
2 Kentucky Administrative Regulations.
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was good cause, but merely that she did not
seek advice from a physician until after she
had quit. The Commission accepted TOPY's
position that Tran's not seeing a physician
prior to quitting was sufficient evidence to
establish Tran quit voluntarily without good
cause. The Commission and TOPY correctly
state that Tran had the burden of proof to
establish she quit for good cause. See
Kentucky Unemployment Ins. Comm'n v. Murphy,
Ky., 539 S.W.2d 293, 294 (1976). The
evidence in this case is largely undisputed.
The employer submitted no evidence on the
record. The record reveals that Tran told
her employer the job task was too strenuous
causing her health to deteriorate. The
employer acknowledged this by moving the
employee but then shifted her back to the
original task because of a shortage of
employees. She proceeded to tell her
employer that she shall have to quit due to
health reasons unless something changes.
She quit her employment and on the same day,
after quitting, obtained a doctor's opinion
stating the work was too strenuous and
placing her on lifting restrictions
incongruous with the former position. The
record indicates the employer chose to place
Tran in this labor intensive [position]
because of an employee shortage. No
evidence in the record indicates a contrary
reason.
The issue presented to the Commission
was whether Tran was faced with
"circumstances as to leave no reasonable
alternative but loss of employment." 539
S.w.2d at 294. "The primary key in
resolving conflicts such as this must be
based on who causes the employee to quit."
Kentucky unemployment Inc. Com. V. Melvin's
Grocery Co., Ky.App., 696 S.W.2d 791, 792
(1985). An individual may not be held to
have quit voluntarily unless that decision
stems from one's own choice or full consent.
See Nichols v. Kentucky Unemployment Comm'n,
Ky.App., 677 S.W.2d 317, 321 (1984).
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"Unemployment compensation is social
legislation adopted into statutory law
designed to afford protection to those
workers who become unemployed through no
fault of their own." Gatliff Coal Co. v.
Anderson, Ky., 814 S.W.2d 564, 565 (1991).
Did Tran quit voluntarily or was she forced
to quit because her employer placed her into
a position her body could not withstand. We
believe that in answering this question the
Commission incorrectly focused on whether
she should have sought medical treatment
before quitting.
It is a rare thing when we are
presented with a record that compels the
Court to make a finding contrary to that of
the Commission. However, this is such a
case. The evidence of record was
exclusively supplied by Tran at the
administrative level and mandates a finding
in her favor. That evidence of record is
that she was placed in a position that
caused her great pain because of the lifting
required. She complained and was
temporarily moved to a less labor-intensive
position. However, TOPY was experiencing
employee shortages which lead to Tran's
being placed back in the manually intensive
input department. The record further
reveals that Tran warned of her impending
resignation because of the pain she
suffered. She was forced to quit and sought
the advice of a physician who placed lifting
limitations upon Tran that made a return to
the input position impossible. The
physician also affirmatively established
that work at the input department was far
too intense for Tran's body. The record
compels a finding that Tran was placed in
the Scylla or Charybdis quandary of doing
serious harm to her body by continuing or
quitting. She is also a Vietnamese
immigrant with little mastery of the English
language, evidenced in by [sic] use of an
interpreter at her hearing. Her
understanding of cultural mores in the
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American workplace was likely limited as
well. We find that the determination of the
[Commission] is clearly not supported by
substantial evidence on the record and,
indeed, compels a finding contrary to that
of the Commission.
These appeals follow.
We shall first address Topy's argument that Tran's
appeal was untimely and that it should have been dismissed
accordingly. Topy argues that the court departed from abundant
case law characterizing as fatal the failure to comply strictly
with statutory provisions for obtaining judicial review of an
agency's decision. See, e.g., Taylor v. Duke, Ky.App., 896
S.W.2d 618, 621 (1995), and Board of Adjustments v. Flood, Ky.,
581 S.W.2d 1 (1978). We agree with the court's ruling that the
appeal was timely pursuant to the statute. The pertinent
portion of KRS 341.450(1) provides as follows:
Except as provided in KRS 341.460, within
twenty (20) days after the date of the
decision of the commission, any party
aggrieved thereby may, after exhausting his
remedies before the commission, secure
judicial review thereof by filing a
complaint against the commission in the
Circuit Court of the county in which the
claimant was last employed by a subject
employer whose reserve account or
reimbursing employer account is affected by
such claims. (Emphasis added.)
Topy contends that the statute contains an
"unqualified requirement" that a claimant seek review within
twenty days after the initial decision. That interpretation
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misconstrues the subsequent, unequivocal statutory language that
a claimant be allowed to exhaust all his available
administrative remedies. Those remedies include the filing of a
motion to reconsider. Thus, the statute encompasses the extra
time needed to file and to await an order on a motion to
reconsider. It contains two alternate time frames from which
the twenty days might run: (1) "after the date of the decision
of the commission" or (2) "after exhausting ... remedies before
the commission ...." The second participial phrase would be a
mere redundancy or worthless surplusage unless it be construed
to provide a claimant the opportunity to pursue the last
possible recourse of review before the commission.
Procedurally, that final step is the filing and adjudication of
a motion for reconsideration.
Constitutional due process guarantees and indeed
mandates the right of a claimant to exhaust such an
administrative alternative. If - instead of actively pursuing
and implementing her remedies -- Tran had neglected to exhaust a
remedy (a failure that arguably would have barred access to the
courts), that omission most assuredly would have been cited by
the Commissioner and Topy to raise a jurisdictional bar. Due
process will not tolerate the denial of meaningful access to
judicial review by arbitrary manipulation of administrative
procedures. The court has ruled recently that administrative
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agencies cannot erect procedural barriers that effectively
create arbitrary impediments to meaningful judicial review of
their final actions.
Next, both appellants complain that the trial court
abused its discretion by substituting its opinion for that of
the Commission. They argue that the record adequately supports
the finding of the Commission that Tran quit her job before
seeking medical attention and its conclusion that she
voluntarily quit her job without good cause. We disagree.
Judicial review of unemployment issues:
is governed by the rule that if the findings
of fact are supported by substantial
evidence of probative value, then they must
be accepted as binding and it must then be
determined whether or not the administrative
agency has applied the correct rule of law.
Raines v. Kentucky Unemployment Insurance Commission, Ky.App.,
669 S.W.2d 928 (1983). The court carefully and extensively
analyzed the standard governing its role in reviewing agency
action. It was wholly aware of the proper parameters of its
authority and discretion. It is true that it made findings not
previously addressed by the Commission --- findings which
addressed Tran's national origin, her difficulty in
communicating in the English language, and her lack of knowledge
concerning the culture and mores of the workplace. However,
these expanded findings in no way contradicted the findings of
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the Commission. They were just, humane, and legitimate
observations as to the circumstances affecting her ability to
cope with her dilemma - certainly relevant to the issue of
whether her departure was attributable to the nature of the
employment. A reviewing court is not required to mirror the
exact language employed by the agency. See, Kentucky Board of
Nursing v. Ward, Ky.App., 890 S.W.2d 641 (1994). The court
correctly applied the substantial evidence standard set forth in
Raines and was accordingly compelled to set aside the deficient
findings of the Commission.
The appellants rely on the fact that Tran quit her job
before seeking medical attention. They argue that the
Commission correctly characterized this action as detrimental to
her claim and that the court erred in overruling the Commission
on this point. They have cited cases from other jurisdictions
holding that an employee who quits for health reasons is not
entitled to benefits unless he is able to document that he was
advised by a physician to do so prior to actually quitting. See
e.g. Green v. Unemployment Compensation Board of Review, 68 Pa.
Commw. 101, 448 A.2d 118 (1982).
Kentucky law has no requirement of a doctor's advice
as a condition precedent for a worker to quit a physically
harmful job in order to establish "good cause." Rather, as the
court correctly stated, "good cause" is established when the
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worker is confronted with "circumstances so compelling as to
leave no reasonable alternative but loss of employment."
(Opinion of the court, citing Murphy, supra at 294). See also,
Raines, 669 S.W.2d at 928, and Nichols, supra, 321. There is
absolutely no evidence in the record to support the Commission's
finding that if Tran had gone to the doctor earlier, Topy might
have accommodated her condition by placing her in a light-duty
position. On the contrary, the evidence amply demonstrated that
Topy deliberately placed her back in an impossible assignment
after it had become fully aware of its detrimental impact on her
health.
Additionally, as distinguished from the cases cited by
appellants from other jurisdictions, Tran communicated her
impaired condition to Topy and sought accommodation prior to
quitting. The appellants countered that she attempted "to hide
the ball from the employer by withholding evidence of a medical
condition." Nothing in the record supports that allegation.
The evidence of record does reveal that Tran informed
her superiors that her workload was too strenuous and that it
was causing her serious problems. She warned them that she
would have to quit if they did not change her work. She
continued to work for two weeks and then consulted the doctor to
whom Topy had referred her. She returned to Topy from the
doctor's office with a statement advising that she could not
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perform the lifting tasks assigned to her. She anticipated that
she would be reassigned. Instead, she was told to turn in her
uniform and to sign a "quit job paper." The evidence is
uncontradicted that Topy was intransigent in its unwillingness
to accommodate her reasonable needs. Thus, the court correctly
determined that Tran was left with no reasonable alternative but
to terminate her employment in order to preserve her health.
Finally, Tran cannot be disqualified from receiving
unemployment benefits because she did not seek workers'
compensation benefits or file a grievance. As the entire record
demonstrates, there is no evidence to indicate that any action
taken by Tran would have affected Topy's treatment of her.
Accordingly, the judgment of the Franklin Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT TOPY BRIEF FOR APPELLEE, NGA
CORPORATION: NGUYEN-TRAN:
James D. Allen E. Patrick Moores
Lizbeth Ann Tully Lexington, Kentucky
Lexington, Kentucky
BRIEF FOR APPELLANT KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
Tamela A. Biggs
Frankfort, Kentucky
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