Raham v. Review Board of the Indiana Employment Security Division , 76 Ind. Dec. 594 ( 1980 )

405 N.E.2d 606 (1980)

David A. RAHAM, Appellant,
v.
REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION AND FORD AEROSPACE AND COMMUNICATIONS, Appellee.

No. 2-280A52.

Court of Appeals of Indiana, Fourth District.

June 17, 1980.

Gary E. Smith, Smith & Smith, Connersville, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

This case involves an appeal from a decision of the appellee Review Board of the Indiana Employment Security Division denying unemployment compensation under the Employment Security Act.^[1] The Review Board had adopted the findings of the appeals referee and his conclusion "the claimant was not involuntarily unemployed due to a physical disability^[2] within the meaning of the Indiana Employment Security Act."

We reverse and remand for further findings of fact.

The Review Board determined claimant-appellant David Raham worked for Ford Aerospace and Communications (Employer) as a maintenance supervisor from November, 1967 until April 4, 1979, and that he terminated such employment for what were alleged to be medical reasons. Evidence of such physical disability was presented at a subsequent hearing, which the employer did not attend, to determine whether Raham was entitled to unemployment benefits. The appeals referee concluded, however, that Raham was not entitled to benefits because "prior to terminating his employment, the claimant did not present a medical statement to the employer indicating a medical recommendation to sever the employment relationship."^[3] In arriving at his findings and conclusions the referee purported to rely on IC XX-X-XX-X(2), which provides:

"An individual whose unemployment is the result of medically substantiated physical disability and who is involuntarily unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation."

The Employer and Review Board maintain this statute requires a claimant to medically substantiate his disability to his employer prior to termination, while Raham argues such substantiation need only be made in a subsequent hearing on determination of eligibility for benefits. We believe the substantiation of disability required by the statute must be made to the employer, since the statute compels the claimant to make "reasonable efforts to maintain the employment relationship," a requirement which presupposes the employer will be aware of the existence of a medical problem and of the physical limitations arising from such disability. Only then may the parties determine, for example, whether the employee may be transferred to work which is more suitable in light of his particular health problem. We note other jurisdictions have recognized the importance of such factors. See, e.g., Konopski v. Commonwealth Unemployment Compensation Board of Review, (1978) 38 Pa. Cmwlth. 62, 391 A.2d 1137, where the Pennsylvania court held before an employee could obtain benefits after leaving for health reasons he must (1) inform the employer of the health problem, (2) request a transfer to work which was suitable in light of his health problem, and (3) offer competent testimony that at the time of termination adequate health reasons existed to justify termination.

In the instant case, however, no findings were made on the manner in which the Employer was informed of the claimant's health problem, whether there was medical substantiation of such problem to the Employer, and how, if at all, the claimant made "reasonable efforts to maintain the employment relationship" as specified by the Statute.^[4] It is the province of the fact-finder to make such determination. Thus, although there was evidence the claimant had discussed his medical problems with his employer and supplied doctor's certificates regarding the same, there were no findings by the appeals referee on these pertinent issues; we accordingly remand this action.

The sole finding of fact in this case, outside of determining the dates of Raham's employment, was that the claimant "did not present a medical statement to the employer indicating a medical recommendation to sever the employment relationship." A medical recommendation substantiating a health problem may appropriately state whether a claimant is able to continue his present position or it may suggest what types of employment the claimant can perform. But we see no reason to require a recommendation that the "employment relationship" should be severed. The statute contains no such requirement. The language of IC XX-X-XX-X(2) seeks to maintain employment whenever possible by requiring the claimant to make "reasonable efforts" to continue working for his employer. We do not believe the statutory purpose would be effectuated by requiring, by contrast, a medical recommendation that the same relationship should be ended. Appellees present no cogent argument to the contrary.

We accordingly reverse and remand this action for further proceedings consistent with this opinion.

CHIPMAN and YOUNG, JJ., concur.

NOTES

[1] Ind. Code 22-4-1-1 et seq.

[2] See IC XX-X-XX-X(2), which provides: "An individual whose unemployment is the result of medically substantiated disability and who is involuntarily unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation."

[3] The decision of the appeals referee stated:

"The evidence of record reveals the claimant worked for this employer for the period November 1967, until April 4, 1979, as a maintenance supervisor. According to the claimant, he terminated his employment due to medical problems.

"Under Chapter 15, Section 1(2) of the Act, ``An individual whose unemployment is the result of medically substantiated physical disability and who is involuntarily unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation.' In this case, the Referee finds that prior to terminating his employment, the claimant did not present a medical statement to the employer indicating a medical recommendation to sever the employment relationship. The Referee, therefore, concludes the claimant did not comply with the modification provisions of Chapter 15, Section 1(2) of the Act. It is, therefore, held the claimant was not involuntarily unemployed due to a physical disability within the meaning of the Indiana Employment Security Act."

[4] We believe there is ample evidence in the record for the hearing officer to make such complete findings and resolve these questions in the proper manner.