{ "id": 11917659, "name": "HOUSECALLS NURSING SERVICES, INC., PETITIONER/APPELLEE v. WILHEMINA R. LYNCH, RESPONDENT, and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT/APPELLANT", "name_abbreviation": "Housecalls Nursing Services, Inc. v. Lynch", "decision_date": "1995-03-21", "docket_number": "No. 9419SC459", "first_page": "275", "last_page": "280", "citations": [ { "type": "official", "cite": "118 N.C. App. 275" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "432 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "402", "parenthetical": "employee, who did not have reliable transportation, not disqualified from unemployment benefits when she refused employment after employer moved plant location farther from residence of employee" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522289 ], "year": 1993, "pin_cites": [ { "page": "415", "parenthetical": "employee, who did not have reliable transportation, not disqualified from unemployment benefits when she refused employment after employer moved plant location farther from residence of employee" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0410-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "322 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754562, 4758821, 4753839, 4753456, 4748855 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0493-02", "/nc/312/0493-01", "/nc/312/0493-04", "/nc/312/0493-03", "/nc/312/0493-05" ] }, { "cite": "316 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525763 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0077-01" ] }, { "cite": "349 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735817, 4738571, 4733134, 4739472, 4736988 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0509-02", "/nc/318/0509-05", "/nc/318/0509-04", "/nc/318/0509-01", "/nc/318/0509-03" ] }, { "cite": "344 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523409 ], "year": 1986, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0415-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(i)" }, { "page": "(a)" }, { "page": "(b)(l)" }, { "page": "(b)(2)" }, { "page": "(e)" }, { "page": "(h)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 521, "char_count": 10757, "ocr_confidence": 0.754, "pagerank": { "raw": 1.4292197538457575e-07, "percentile": 0.6508485629857185 }, "sha256": "7fbd268ae2e55d7b6d7f8da1310a812a4089ffab56b006cf89c8b9944290272c", "simhash": "1:c78961966a38345a", "word_count": 1756 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge COZORT concurs.", "Judge LEWIS dissents." ], "parties": [ "HOUSECALLS NURSING SERVICES, INC., PETITIONER/APPELLEE v. WILHEMINA R. LYNCH, RESPONDENT, and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT/APPELLANT" ], "opinions": [ { "text": "GREENE, Judge.\nPursuant to N.C. Gen. Stat. \u00a7 96-15(i), the Employment Security Commission of North Carolina (ESC) appeals from a judgment of the Randolph County Superior Court holding that Wilhemina R. Lynch (Lynch) was disqualified for unemployment insurance benefits.\nThe evidence shows that Lynch worked for Housecalls Nursing Services, Inc. (Housecalls), a provider of in-home patient care, as a certified nursing assistant from April 1991 until April 1993.\nLynch was discharged from her job at Housecalls because the patient with whom she worked was admitted to a nursing home on 8 April 1993, and Housecalls did not have other work available for Lynch at this time. On 11 April 1993, Lynch filed a claim for unemployment insurance benefits, pursuant to N.C. Gen. Stat. \u00a7 96-15(a), against Housecalls.\nPursuant to N.C. Gen. Stat. \u00a7 96-15(b)(l), an Adjudicator reviewed Lynch\u2019s claim and found her to be \u201cnot disqualified for benefits,\u201d because she was not discharged \u201cfor misconduct or substantial fault on [her] part.\u201d Housecalls contests Lynch\u2019s qualification to receive unemployment insurance benefits, because Housecalls offered Lynch a job with a new patient on 13 April 1993 and she refused the job. Thus, pursuant to N.C. Gen. Stat. \u00a7 96-15(b)(2), Housecalls appealed the Adjudicator\u2019s determination, arguing that Lynch \u201crefused opportunities for other additional work.\u201d During a hearing on 23 June 1993, a representative from Housecalls testified that they offered Lynch a job working three two-hour shifts, the times of which were 8 a.m. until 10 a.m., then again from 12 noon until 2 p.m., and again from 4 p.m. until 6 p.m. Lynch testified that on the day she drove to that location to work, her odometer measured fifty miles, one way. She also testified that the odometer on her car displayed over 100,000 miles. After the hearing, the appeals referee made the following findings of fact:\n1. On April 13, 1993, [Lynch] was offered a job by Housecalls in Goldsboro, which is 45 miles from [Lynch\u2019s] residence.\n2. A brief description of the job is as follows: working three two hour visits per day, caring for a patient in his home at $20.00 per visit. This was identical to [Lynch\u2019s] previous work except that she had earned $16.00 per visit previously. This job would have been five days per week.\n3. [Lynch] failed to accept the job because she felt her car was not reliable enough to drive that far on a regular basis. She did work two visits on April 14, 1993 to train other workers.\n4. [Lynch] is qualified by experience and training to perform the following types of work: certified nursing assistant.\nThe appeals referee then concluded that the job offered Lynch was \u201csuitable\u201d for her and that she \u201cdid not have good cause for failing to accept the suitable work.\u201d Thus, the appeals referee determined that Lynch was \u201cdisqualified for unemployment benefits.\u201d\nLynch then appealed to the ESC, pursuant to N.C. Gen. Stat. \u00a7 96-15(e), which reversed the decision of the appeals referee based on his improper application of the law in this case, because it did not \u201cconsider the distance of the available work from [Lynch\u2019s] residence.\u201d The ESC accordingly held Lynch \u201cnot disqualified\u201d from receiving unemployment benefits because the job offered by Housecalls was \u201cunsuitable\u201d for Lynch. In so deciding, the ESC adopted the appeals referee\u2019s findings of facts with the following modifications:\n2. Unless [Lynch] was assigned other visits within the same work area between the visits associated with this particular assignment, the job would have required her to travel a minimum of two hundred-seventy (270) miles per day; i.e., three (3) trips originating at and returning to her place of residence. The Appeals Referee obtained no labor market information from an agency witness on the travel distances normally associated with these types of jobs, although information appearing on Commission Exhibit #5 indicated that the customary one-way travel distance for such jobs would be twenty (20) miles.\n3. [Lynch\u2019s] car was a 1983 Buiclc with over one hundred thousand (100,000) miles.\nThereafter, Housecalls, pursuant to N.C. Gen. Stat. \u00a7 96-15(h), petitioned the Randolph County Superior Court for review. On 16 February 1994, that court reversed the ESC\u2019s decision and reinstated the decision of the appeals referee, thus concluding that the job offered Lynch was \u201csuitable.\u201d\nThe appeal from the superior court to this Court requires that we review the order of the ESC in the same manner as the superior court must review that order. N.C.G.S. \u00a7 96-15(i) (1993); Reco Transp., Inc. v. Employment Sec. Comm\u2019n, 81 N.C. App. 415, 418, 344 S.E.2d 294, 296, disc. rev. denied, 318 N.C. 509, 349 S.E.2d 865 (1986). Thus, we accept as conclusive the findings of fact made by the ESC \u201cif there is any competent evidence to support them.\u201d N.C.G.S. \u00a7 96-15(i). The ESC\u2019s conclusions of law receive de novo review. Id. Appeals to the courts from orders of the ESC are not governed by the Administrative Procedures Act. N.C.G.S. \u00a7 150B-l(c)(5) (1991).\nThe issues on appeal are whether (I) the ESC\u2019s findings of fact are supported by competent evidence; and (II) those findings support the ESC\u2019s conclusion that the job offered Lynch was \u201csuitable.\u201d\nI\nHousecalls argues that the ESC\u2019s finding that \u201cthe job would have required [Lynch] to travel a minimum of two hundred-seventy (270) miles per day\u201d is not supported by competent evidence. We disagree.\nThe evidence before the ESC was that Housecalls offered Lynch a job, which consisted of three, two-hour sessions with a patient who lived forty-five miles from Lynch\u2019s residence. The sessions began at 8 a.m. and ended at 6 p.m. with a two-hour break from 10 a.m. until 12 noon and another two-hour break from 2 p.m. until 4 p.m. There is no evidence in the record that Housecalls provided Lynch any place to stay during the four hours she was required to wait between working periods, or that she had some place to stay near the work site. Furthermore, as the ESC argues, \u201c[t]o expect claimant to find something to do four hours per day, twenty hours per week, when she is 45 miles from her house is not reasonable,\u201d because this effectively requires Lynch to be at or near the work site for ten hours a day while compensating her for only six hours. Thus, the finding that the job required Lynch to drive back and forth between her home and the patient\u2019s home between the sessions for a total of 270 miles each day is supported by this record. See In re Durham Annexation Ordinance, 69 N.C. App. 77, 85, 316 S.E.2d 649, 654 (ultimate findings, which fact finders are required to make, are reached by process of logical reasoning from the evidence), disc. rev. denied and appeal dismissed, 312 N.C. 493, 322 S.E.2d 553 (1984).\nII\nTo qualify for unemployment benefits, a claimant must accept \u201csuitable work when offered him.\u201d N.C.G.S. \u00a7 96-14(3) (1993). The determination of whether the work is suitable requires a consideration of several factors, including \u201cthe distance of the available work from [the employee\u2019s] residence.\u201d Id. In this case the distance from the employee\u2019s residence to the available work, the disconnected work schedule and the transportation available to the employee support the conclusion that the available work was not suitable, as that term is used in N.C. Gen. Stat. \u00a7 96-14(3). See Watson v. Employment Sec. Comm\u2019n, 111 N.C. App. 410, 415, 432 S.E.2d 399, 402 (1993) (employee, who did not have reliable transportation, not disqualified from unemployment benefits when she refused employment after employer moved plant location farther from residence of employee). Thus, the ESC correctly ordered that Lynch was not disqualified from receiving unemployment benefits and the trial court erred in reversing that order. The order of the superior court is accordingly reversed.\nReversed.\nJudge COZORT concurs.\nJudge LEWIS dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Lewis\ndissenting.\nI respectfully dissent. The superior court correctly ruled that the ESC\u2019s findings of fact were not supported by sufficient competent evidence. There was no evidence to support the ESC\u2019s finding that the job would have required Lynch to travel a minimum of 270 miles per day. The majority implies that logical reasoning permits the inference that the three-visit per day schedule would require Lynch to drive home after each visit. I find no logical reason why anyone would drive the forty-five miles to work for the first visit at 8:00 a.m., then home, then back for the second visit, then home, then back for the third visit, then home at 6:00 p.m.\nAs to the forty-five mile commute, I note that on Lynch\u2019s 1991 application for employment, she answered \u201cyes\u201d to the following three questions: \u201cCan you travel 30 miles (one-way) daily to work?\u201d; \u201cCan you travel over 30 miles occasionally to work?\u201d; \u201cCan you travel over 30 miles routinely to work?\u201d Additionally, one of the \u201cspecial requirements\u201d of the terms of her employment was that she have transportation.\nBecause the superior court correctly concluded that there was insufficient evidence to support the ESC\u2019s findings of fact, I would affirm the judgment of the superior court.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "J. Sam Johnson, Jr. for petitioner-appellee.", "Chief Counsel T. S. Whitaker and Staff Attorney C. Coleman Billingsley, Jr., for respondent-appellant." ], "corrections": "", "head_matter": "HOUSECALLS NURSING SERVICES, INC., PETITIONER/APPELLEE v. WILHEMINA R. LYNCH, RESPONDENT, and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT/APPELLANT\nNo. 9419SC459\n(Filed 21 March 1995)\n1. Labor and Employment \u00a7 164 (NCI4th)\u2014 available work\u2014 distance from employee\u2019s home \u2014 sufficiency of evidence\nThe evidence was sufficient to support the Employment Security Commission\u2019s finding that the job offered by petitioner to respondent would have required her to travel a minimum of 270 miles per day.\nAm Jur 2d, Unemployment Compensation \u00a7\u00a7 119, 120.\n2. Labor and Employment \u00a7 164 (NCI4th)\u2014 available work not suitable \u2014 respondent not disqualified from receiving unemployment benefits\nThe distance from respondent employee\u2019s residence to the available work (270 miles), the disconnected work schedule (a ten-hour span of time during which she would be \u201con duty\u201d and paid for only six hours), and the transportation available to the employee (a ten-year-old vehicle with over 100,000 miles on it) supported the ESC\u2019s conclusion that the available work was not suitable, and the ESC correctly ordered that respondent was not disqualified from receiving unemployment benefits.\nAm Jur 2d, Unemployment Compensation \u00a7\u00a7 119, 120.\nJudge Lewis dissenting.\nAppeal by respondent from judgment entered 18 February 1994 in Randolph County Superior Court by Judge Peter M. McHugh. Heard in the Court of Appeals 2 February 1995.\nJ. Sam Johnson, Jr. for petitioner-appellee.\nChief Counsel T. S. Whitaker and Staff Attorney C. Coleman Billingsley, Jr., for respondent-appellant." }, "file_name": "0275-01", "first_page_order": 307, "last_page_order": 312 }