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
 
 
 
 
 			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 
 
 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
 
 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 
 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 
 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 
 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 
 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 
 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.
 
 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 
 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.
 
 
 
 
 
 * Pursuant to Code  17.1-413, this opinion is not designated for 
 publication.
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