Favreau v. Dept. of Employment Training

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                                No. 90-366



Dennis Favreau                               Supreme Court

     v.                                      On Appeal from
                                             Employment Security Board
Department of
Employment & Training                        February Term, 1991




Lawrence Leland and Mary Ann Gucciardi, board members

Alexander Scherr, Vermont Legal Aid, Inc., St. Johnsbury, for plaintiff-
  appellant

Brooke Pearson, Montpelier, for defendant-appellee



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



     GIBSON, J.   Claimant appeals from a decision of the Employment
Security Board disqualifying him from unemployment benefits following the
conclusion of his employment with the Newport Furniture Parts Corporation.
The Department's chief claims adjudicator granted benefits to claimant,
finding that he had left his employment due to a health condition.  The
appeals referee reversed that decision, however, and the Board affirmed the
referee's decision.  We affirm the Board's decision.
     Claimant was employed from February 1987 through mid August 1989 as a
sealer-sander at the employer's Newport plant.  At the time he left, claim-
ant was suffering from an "adjustment disorder with mixed emotional
features."  He was receiving counseling from a vocational support specialist
at Northeast Kingdom Mental Health (NKMH), and the employer was aware of his
condition.  Over the course of the employment, claimant brought certain
work-related problems to the attention of his support specialist at NKMH,
and she intervened from time to time with the employer on his behalf.  In
March 1989, the employer's representatives advised the specialist that they
had observed severe personality problems with claimant, that he was dis-
ruptive, that he complained to other employees and started rumors, and that
his productivity was low.  Almost immediately, the specialist began helping
claimant develop a resume and start a search for a new job.
     Claimant had physical as well as emotional difficulties.  In late 1988,
the employer's production method changed to a piecework system, and claimant
was given a goal of twelve chairs per hour, which he had some difficulty
meeting.  He suffered raw and bleeding hands, for which the employer pro-
vided gloves.  He was also given a variety of wristbands to deal with wrist
pain.
     Despite the problems, in May 1989 claimant informed the specialist at
NKMH that "he felt it [the job] was going O.K.," though at that time he was
looking for other employment.  He gave the specialist similar job assess-
ments in June and July, 1989.  It is clear from the testimony, however, that
the shift to piecework had created additional stress and pressure on claim-
ant and that he was having difficulty coping.  Shortly before claimant
handed in a written resignation, his supervisors criticized his job per-
formance, after which claimant submitted the following letter, dated August
8, 1989, to the employer:
            This is to inform you that August 18th will be my last
          day of employment here.  I'm sorry if my work was unsat-
          isfactory.  I've decided to step aside so you can find
          somebody else.  I learned a lot from this job, enough to
          help me find another job later on down the road.  Thank
          you for your patience and the training I received.

     Claimant's last day of work was August 18, 1989.  On August 25, 1989,
claimant was examined for the first time by a physician who certified on
September 1, 1989 that the "pt has undiagnosed L arm/wrist condition neuro
app."  On the certification form, the physician responded "no" to whether
claimant could perform the normal duties of his job as of the first workday
his incapacitation was declared and "yes" to whether he could do so as of
the effective date of his claim for unemployment benefits, which the referee
noted was August 19, 1989.  The form contained no information relating
either to the nature of claimant's disability or the duties and physical
requirements of his last job.
     In addition to the physical symptoms, claimant contended -- as a
separate justification for his decision to leave the job -- that he was
systematically persecuted by his immediate supervisor because of his
religious beliefs and practices.  The appeals referee found that "[t]here
were, in fact, some incidents of bantering about religious subjects, some
initiated by a supervisor and some by the claimant."
     The appeals referee concluded that claimant had left his employment
voluntarily, without good cause attributable to the employer, and not
because of a health condition precluding him from discharging duties
inherent in his employment.  The referee cited the text of claimant's
letter, which referred neither to a medical problem nor a "work-related
situation such as religious persecution," his previous search for other
employment, the inadequacy of the medical certification of  claimant's
problems, and the lack of evidence that "the asserted incapacitating con-
dition . . . [related] directly to an inability to perform duties inherent
in the employment."
     The referee acknowledged claimant's emotional problems but found that,
while the August 8, 1989 meeting with his supervisors was "extremely stress-
ful for him," the evidence did not support a conclusion that "claimant could
not, with some effort, have resolved his problems at work in a satisfactory
way, or that such efforts would have been unavailing."  The referee dismiss-
ed as unconvincing the alleged religious harassment as grounds for claim-
ant's departure from the employment.
     After a hearing on the record below, the Board adopted the referee's
findings and added its own finding that, when claimant filed his additional
claim for benefits on August 21, 1989, he had indicated on the claim form
that his reason for separation was a "voluntary leaving" and did not check
the box marked "medical."  The Board concluded that, with respect to his
physical and emotional problems, claimant "simply failed to demonstrate that
either health condition was the real reason for his abrupt quitting of his
job."  The Board cited his August 8, 1989 letter and a fact-finding state-
ment, completed some ten days after he had left the job, in which claimant
provided a narrative explanation for his quitting, reciting medical
problems, but not stating that these conditions precluded his being able to
do his job.  The Board also found that claimant's testimony before the
appeals referee failed to support the theory that his departure had been
motivated by medical conditions.  The Board concluded that claimant "quit
his job in a moment of anger and out of frustration over his employer's
criticism of his work . . . ."   With respect to claimant's argument that he
had left the job because of religious harassment, the Board concluded that
claimant had not proved that his quitting was related to good cause attrib-
utable to the employer.  The present appeal followed. (FN1)
     Claimant argues that the medical report form contained information
sufficient to establish the present claim.  He maintains that the report was
on a standard form virtually identical to that held to be adequate in Davis
v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981),
where we held that no particular form is necessary to satisfy the require-
ment of a physician's certificate under 21 V.S.A. { 1344(a)(3).  Id. at 273-
74, 438 A.2d  at 378.
     Davis, however, does not establish that the filing of a document by a
physician is dispositive of whether a claimant has left his last employment
because of a health condition.  In Davis, we held that the physician's
statement did not have to deal with facts collateral to the medical state-
ment, such as, when the claimant left his or her employment, whether she or
he left because of a health condition, or whether the health condition pre-
cluded discharging duties inherent in that employment.  Id. at 273, 438 A.2d  at 378.  Although Davis establishes that the required medical certifi-
cate need not adhere to a particular form, it does not stand for the
proposition that, once filed, the certificate ends the inquiry as to why a
claimant left an employment.
     In the instant case, the medical certificate contained virtually no
information indicating that claimant had a medical condition that
"preclude[d] the discharge of duties inherent in such employment" within the
meaning of { 1344(a)(3).  Moreover, other evidence, including claimant's
letter of resignation, his August 29, 1989 fact-finding statement, and his
testimony before the referee, all weighed against the conclusion that
claimant left his employment for health-related reasons.
      On appeal, claimant emphasizes his own version of events, stressing
evidence supporting his contention that he left the employment for medical
reasons.  For example, claimant argues that he "and his attending psychi-
atric social worker testified that he was and had been consistently
impaired by his emotional condition from at least late July onwards.
Indeed, his worker . . . testified that the primary reason for his quit lay
in his inability to cope with the stress of his physical condition and his
job, because of his psychiatric condition."
     The referee and the Board, however, concluded that on balance the
evidence demonstrated that claimant left his employment for other than
health-related reasons.  The Board conceded that there was abundant evidence
that claimant had physical and mental problems, but, on the crucial question
of why he left his employment, the Board concluded that claimant's evidence
was insufficient to demonstrate either that medical conditions caused his
departure from the job or that they would have precluded him from dis-
charging the duties inherent in the job.
     Our function on appeal is not to weigh the evidence anew as a trier of
fact but to determine if the Board's findings and conclusions are supported
by credible evidence.  In re Wheelock, 130 Vt. 136, 139, 287 A.2d 569, 571
(1972).  There is ample evidence on the record supporting the Board's
findings and conclusions.  Accordingly, the Board's decision will not be
disturbed.
     Affirmed.


                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice




FN1.    The Board did not adopt an additional ground for denial of benefits
advanced by the referee, namely, that claimant was obligated to notify the
employer in advance of a health condition causing the claimant to leave the
job.  Claimant nevertheless argues the point on appeal, and the Department
agrees that the referee was incorrect in this aspect of his decision.  As
the Board did not base its decision on this ground, the issue is not before
us.