{ "id": 8524547, "name": "ROXIE M. RAY, Petitioner-Appellant v. BROYHILL FURNITURE INDUSTRIES AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees", "name_abbreviation": "Ray v. Broyhill Furniture Industries", "decision_date": "1986-07-01", "docket_number": "No. 8524SC1169", "first_page": "586", "last_page": "593", "citations": [ { "type": "official", "cite": "81 N.C. App. 586" } ], "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": "266 S.E. 2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "claimant left because actions employer required her to take violated ethical standards of her profession." } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548628 ], "year": 1980, "pin_cites": [ { "parenthetical": "claimant left because actions employer required her to take violated ethical standards of her profession." } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0163-01" ] }, { "cite": "255 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551884 ], "year": 1979, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0028-01" ] }, { "cite": "327 S.E. 2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "258", "parenthetical": "The new \"North Carolina test\" is contained in N.C. Gen. Stat. Sec. 96-14(1)(a) and (b) (1985)." }, { "parenthetical": "Emphasis added." } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524948 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0553-01" ] }, { "cite": "475 Pa. 547", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1734105 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/pa/475/0547-01" ] }, { "cite": "319 S.E. 2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "A claimant who leaves a job for health reasons has left involuntarily with good cause attributable to the employer and is entitled to benefits as long as other statutory requirements are met." } ], "opinion_index": 0 }, { "cite": "311 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681733, 4683402, 4685557, 4680346, 4680895 ], "year": 1984, "pin_cites": [ { "parenthetical": "A claimant who leaves a job for health reasons has left involuntarily with good cause attributable to the employer and is entitled to benefits as long as other statutory requirements are met." } ], "opinion_index": 0, "case_paths": [ "/nc/311/0402-03", "/nc/311/0402-02", "/nc/311/0402-05", "/nc/311/0402-01", "/nc/311/0402-04" ] }, { "cite": "309 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "735" }, { "page": "737" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 492", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524812 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "495" }, { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0492-01" ] }, { "cite": "320 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523673 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0571-01" ] }, { "cite": "161 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "273 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575910 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0629-01" ] }, { "cite": "324 S.E. 2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749784 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0618-01" ] }, { "cite": "311 S.E. 2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "373" }, { "page": "373", "parenthetical": "Commission's conclusions of law may be fully reviewed on appeal" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524329 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "262" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0260-01" ] } ], "analysis": { "cardinality": 719, "char_count": 17093, "ocr_confidence": 0.817, "pagerank": { "raw": 1.7483074260957182e-07, "percentile": 0.7081165735917422 }, "sha256": "3e96ec3984487e7514cd9b492e2a970c5ec121b0307ef7e403a269ec1032988f", "simhash": "1:29f5c67ff8ab8e63", "word_count": 2847 }, "last_updated": "2023-07-14T19:31:13.412578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Martin concur." ], "parties": [ "ROXIE M. RAY, Petitioner-Appellant v. BROYHILL FURNITURE INDUSTRIES AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees" ], "opinions": [ { "text": "BECTON, Judge.\nThe claimant appellant, Roxie M. Ray, was employed by Broyhill Furniture Industries (Broyhill) in Lenoir, North Carolina, for five years and four months before resigning for health reasons on 21 December 1984. Her claim for unemployment benefits was denied because the claims adjudicator found that she had voluntarily quit her employment without good cause attributable to her employer. The decision to deny benefits having been upheld by the appeals referee, the Employment Security Commission, and the Superior Court, Ms. Ray appeals to this Court. We reverse and remand.\nI\nMs. Ray worked in the finishing department, and her job was to wipe glaze off the furniture after it had been sprayed. She was constantly exposed to chemical sprays, lacquers and fumes. The company did not provide workers with any kind of protective mask to minimize the harmful effects of exposure to these chemicals and fumes. They did provide fans in the glaze department, which Ms. Ray testified \u201cwould just more or less pick that stuff up and just blow it around, and it would, you could just blow it out of your nose, just handful [sic] of it. You would cough it up, you could just take your hand and rub it over your hair and your hands would just be glazed. . . .\u201d\nMs. Ray testified that she was told by her doctor that she would get no relief from her aggravated bronchitis and asthma conditions as long as she was exposed to the chemicals and fumes. He suggested that she request a protective mask and that she seek a transfer to another department. Ms. Ray brought both of these requests to Jimmy Stewart, her immediate supervisor, but no action was ever taken on either of them. In fact, when Ms. Ray got no satisfaction from Mr. Stewart on the transfer request, she expressed an intention to go to the plant manager. According to Ms. Ray, Mr. Stewart threatened to fire her if she went over his head.\nMs. Ray gave one week\u2019s notice and left Broyhill on 21 December 1984. Ms. Ray testified that she would have continued to work for Broyhill if she could have been transferred from the finishing room to another department.\nII\nIntroduction\nMs. Ray contends that the superior court erred in upholding the Commission\u2019s conclusion that she voluntarily quit her job without good cause attributable to her employer because the Commission improperly applied the law to the facts of her case. We agree.\nUnder N.C. Gen. Stat. Sec. 96-14(1) (1981), the statute in effect at the time that Ms. Ray applied for benefits, a claimant would be disqualified from receiving benefits if she: (1) left work voluntarily (2) without good cause attributable to the employer. If a claimant either left work involuntarily or with good cause attributable to the employer, she could collect benefits. Eason v. Gould, Inc., 66 N.C. App. 260, 311 S.E. 2d 372 (1984), affirmed, 312 N.C. 618, 324 S.E. 2d 223 (1985). Sections of the Employment Security Act which impose disqualifications from receiving benefits should be strictly construed in favor of claimants. In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968). However, the burden is on the claimant to prove that she is not disqualified under the Act. Huggins v. Precision Concrete Forming, 70 N.C. App. 571, 320 S.E. 2d 416 (1984).\nWe conclude that Ms. Ray has established both that her resignation was involuntary due to compelling health reasons and that she had good cause attributable to her employer to leave.\nA. Leaving Work \u201cInvoluntarily,\u201d and the \u201cPennsylvania Test\u201d\nFirst, we address the issue of voluntariness. An employee has not left her job voluntarily when events beyond her control or the wishes of the employer cause the termination. Eason, 66 N.C. App. at 262, 311 S.E. 2d at 373. In addition, an employee need not continue employment which is injurious to her health. In many cases, resigning under such circumstances is an involuntary quit, entitling a claimant to benefits. See generally Milliken & Co. v. Griffin, 65 N.C. App. 492, 309 S.E. 2d 733 (1983), disc. rev. denied, 311 N.C. 402, 319 S.E. 2d 272 (1984) (A claimant who leaves a job for health reasons has left involuntarily with good cause attributable to the employer and is entitled to benefits as long as other statutory requirements are met.).\nMs. Ray had the burden of showing that her resignation was involuntary due to her health condition. However, the Commission required Ms. Ray to satisfy all four parts of the so-called \u201cPennsylvania test,\u201d requiring the claimant to (1) introduce competent testimony that at the time of leaving adequate health reasons existed to justify the leaving, (2) inform the employer of the health problems, (3) specifically request the employer to transfer her to a more suitable position, and (4) take the necessary minimal steps to preserve her employment such as requesting a leave of absence if appropriate and available. See Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A. 2d 132 (1977).\nNorth Carolina courts have refused to hold that every claimant must prove all four parts of this test in order to survive disqualification. See Hoke v. Brinlaw Mfg. Co., 73 N.C. App. 553, 327 S.E. 2d 254 (1985). In fact, at the time Ms. Ray\u2019s case was decided by the Commission, there was no North Carolina case or statute that set forth what a claimant had to show in order to establish the threshold proposition that leaving employment was involuntary due to health reasons. See Hoke, 73 N.C. App. at 559, 327 S.E. 2d at 258 (The new \u201cNorth Carolina test\u201d is contained in N.C. Gen. Stat. Sec. 96-14(1)(a) and (b) (1985).).\nThe Hoke Court came closest to issuing such a prescription when it held that, depending on the facts, one or more of the four requirements should be applied in most cases involving a voluntary leaving due to health reasons. Id. (Emphasis added.) Applying this standard, we hold that Ms. Ray has met her burden of showing that she should not be disqualified.\nB. The Sufficiency of Claimant\u2019s Evidence\nThe Commission erred by requiring Ms. Ray to meet all four parts of the \u201cPennsylvania test\u201d and by increasing her burden of proving some of those parts even beyond that which the Pennsylvania courts require. For example, the Commission found that Ms. Ray \u201cdid not present any competent writing from her physician to her employer at the time she quit.\" (Emphasis added.) This implies that a claimant must produce a physician\u2019s note on or before the day she leaves. Neither the \u201cPennsylvania test\u201d nor the new North Carolina statute requires as much. Rather, the claimant must only show by competent evidence that the health condition existed at the time of the leaving. Competent evidence may include the physician\u2019s statement or testimony, but does not exclude any other evidence tending to prove the existence of claimant\u2019s health condition. See Milliken, 65 N.C. App. at 495, 309 S.E. 2d at 735. Ms. Ray\u2019s testimony about her condition, which was corroborated by the physician\u2019s note, was competent evidence. The employer offered no contradictory evidence. Ms. Ray has met her burden on part one.\nDefendant makes much of the fact that Ms. Ray\u2019s doctor\u2019s note was dated 7 February 1985, some six weeks after she left Broyhill. This, they say, did not prove that she had left work due to a health condition, which existed at the time of her leaving. Since the Commission erroneously believed that a contemporaneous, written physician\u2019s note was the only competent evidence which would establish a health condition at the time of the leaving, it disregarded Ms. Ray\u2019s testimony and looked instead to the technical, probative value of the 7 February 1985 note.\nMs. Ray testified that Dr. Cline had advised her before she left Broyhill in December of 1984 that she should not be working around the chemicals and fumes. This was competent evidence. The note corroborated her testimony. The fact that the note was written in the present rather than in the past tense (\u201cneeds to be away from dust, fumes, and smoke due to medical problems\u201d) does not render it incompetent, even though the note might have been better evidence had it contained a more time-specific prohibition.\nC. Notifying the Employer of the Health Problem\nThe Commission also erred in finding that Ms. Ray failed to inform the employer of the health problem. Since no witnesses testified on behalf of the employer, there is no evidence of the personnel policy, standard procedure, or decision-making structure at Broyhill. Yet, the Commission chose to speculate as to what Ms. Ray could have done to preserve her claim. The Commission stated: \u201cExcept for her supervisor, she did not inform anyone in authority. She could have gone to the personnel department or the plant manager and did not do so.\u201d\nAgain, neither the \u201cPennsylvania test\u201d nor the new North Carolina statute requires as much. All that was required of Ms. Ray under the \u201cPennsylvania test\u201d was that she inform the employer of the health problem or specifically request a transfer to a more suitable position, both of which she did. Under the new North Carolina statute, Ms. Ray would need only to have given the employer notice of the health condition at a reasonable time prior to leaving, and be available for other alternative work offered by the employer, requirements which she also satisfied. See G.S. Sec. 96-14(l)(b); Milliken, 65 N.C. App. at 497, 309 S.E. 2d at 737.\nThe Commission took the position that Ms. Ray\u2019s supervisor was not the \u201cemployer\u201d within the meaning of the \u201cPennsylvania test.\u201d We disagree. Ms. Ray testified that not only did her supervisor, Mr. Stewart, refuse to take action on her requests for transfer, and in fact told her that he doubted she could get one, he also threatened to fire her if she went to the plant manager. Certainly, if Mr. Stewart had the power to fire Ms. Ray, he was at least in a position to stand in the shoes of the employer for purposes of taking notice of the employee\u2019s health condition and transfer request. That he chose to ignore and threaten Ms. Ray should not operate to increase her burden of preserving her claim.\nSpeculation as to what Ms. Ray could have done is irrelevant. The issue is not whether she presented an ironclad case to the Commission, but rather whether she met the burden of showing that she constructively informed the employer or requested a transfer. Again, because Broyhill offered no evidence and the only evidence on this issue was Ms. Ray\u2019s testimony, the Commission erred in finding that she did not inform anyone in authority.\nD. Taking the \u201cNecessary Minimal Steps\u201d\nFinally, the Commission found that Ms. Ray\u2019s \u201cfailure to take the necessary minimal steps in order to seek a transfer or otherwise protect her employment requires a disqualification period [sic].\u201d The Commission did not specify what those \u201cnecessary minimal steps\u201d would have been, but it is apparent that the Commission felt Ms. Ray should have gone to the plant and/or personnel manager and perhaps even that she should have asked for a leave of absence, even though she testified that a leave of absence would have given her only temporary relief, such as her vacation the previous July had done. We have already found that by going to her immediate supervisor, Ms. Ray gave at least constructive notice to her employer of her condition and desire for a transfer. This, together with asking for a protective mask and seeking the care and advice of a physician, is enough to meet the burden of showing that she took the \u201cnecessary minimal steps\u201d to preserve her employment.\nE. Leaving Work with \u201cGood Cause\u201d\nEven assuming, arguendo, that Ms. Ray did not establish that she left work involuntarily, we believe that she should have been allowed benefits on the ground that she left with good cause attributable to her employer. \u201cGood cause\u201d is that which \u201cwould be deemed by reasonable men and women valid and not indicative of an unwillingness to work.\u201d Watson, 273 N.C. at 635, 161 S.E. 2d at 7. Cause \u201cattributable to the employer\u201d is one which is \u201cproduced, caused, created or as a result of actions by the employer.\u201d In re Vinson, 42 N.C. App. 28, 31, 255 S.E. 2d 644, 646 (1979).\nWe believe that this also includes inaction by the employer. Broyhill\u2019s inaction placed Ms. Ray in the untenable position of having to choose between leaving her job and becoming unemployed or remaining in a job which exposed her, without even minimal protection, to harmful chemicals and fumes that exacerbated her asthma and bronchitis conditions. Thus, Ms. Ray\u2019s cause was attributable both to the employer\u2019s action (Mr. Stewart\u2019s threat to fire her if she went over his head) and inaction (Mr. Stewart\u2019s failure to put in her transfer request).\nThe Employment Security Act was passed for \u201c[t]he public good and the general welfare of the citizens of this State . . . for the benefit of persons unemployed through no fault of their own.\u201d N.C. Gen. Stat. Sec. 96-2 (1985). The Act does not contemplate penalizing workers who choose in favor of their own health, safety or ethical standards and against an affirmative or de facto policy of the employer to the contrary. See, e.g., In re Clark, 47 N.C. App. 163, 266 S.E. 2d 854 (1980) (claimant left because actions employer required her to take violated ethical standards of her profession.).\nConclusion\nWe hold that the Commission erred in disqualifying Ms. Ray from receiving benefits by applying an improper legal standard and by disregarding or misapplying the only competent evidence offered to meet that stringent and inflated burden. The Commission\u2019s findings of fact disregarded much of the competent evidence and its conclusions of law were based on an erroneous interpretation of relevant precedent. See Eason, 66 N.C. App. at 261, 311 S.E. 2d at 373 (Commission\u2019s conclusions of law may be fully reviewed on appeal).\nThe judgment of the Superior Court is reversed, and the cause is remanded to the Commission for entry of an award of benefits.\nReversed and remanded.\nJudges Johnson and Martin concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Legal Services of the Blue Ridge, Inc., by Robert W. Lehrer, for petitioner appellant.", "Employment Security Commission of North Carolina, by C. Coleman Billingsley, Jr., for respondent appellee." ], "corrections": "", "head_matter": "ROXIE M. RAY, Petitioner-Appellant v. BROYHILL FURNITURE INDUSTRIES AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees\nNo. 8524SC1169\n(Filed 1 July 1986)\n1. Master and Servant \u00a7 108\u2014 unemployment compensation \u2014 leaving work for health reasons \u2014\u201cPennsylvania test\u201d \u2014 burden of proof\nThe Employment Security Commission erred in requiring claimant to meet all four parts of the \u201cPennsylvania test\u201d in order to obtain unemployment compensation after leaving her employment for health reasons and in placing upon claimant an improper burden of proof for some of those parts. N.C.G.S. \u00a7 96-14(1) (1981).\n2. Master and Servant \u00a7 108\u2014 unemployment compensation \u2014 existence of health condition \u2014 burden of proof\nClaimant had only to show by competent evidence that a health condition existed at the time she left her employment, and the Employment Security Commission erred in requiring claimant to produce a physician\u2019s note on or before the date she left her employment. Plaintiff met her burden of proving her health condition by her own testimony that her doctor had advised her before she left her employment that she should not be working around chemicals and fumes and by a note from her physician dated six weeks after she left her employment.\n3. Master and Servant \u00a7 108\u2014 unemployment compensation \u2014 informing employer of health condition\nThe Employment Security Commission erred in finding that claimant failed to inform her employer of her health problem or to request a transfer to a more suitable position where claimant\u2019s uncontradicted testimony showed that she informed her immediate supervisor of her health problem and requested a transfer to another department, and that the supervisor took no action on her request and threatened to fire her if she went to the plant manager.\n4. Master and Servant \u00a7 108\u2014 unemployment compensation \u2014 minimal steps to preserve employment\nClaimant took the necessary minimal steps to preserve her employment where she sought the advice and care of a physician, and she informed her immediate supervisor of her health problems, asked for a protective mask, and requested a transfer to another department.\n5. Master and Servant \u00a7 108\u2014 unemployment compensation \u2014 leaving work for health reasons \u2014 good cause attributable to employer\nClaimant left work with good cause attributable to her employer and thus was entitled to unemployment benefits where claimant\u2019s asthma and bronchitis condition was exacerbated by her exposure to chemical sprays, lacquers and fumes in her employment, and claimant\u2019s immediate supervisor failed to act on her request for a transfer to another department and threatened to fire her if she went to the plant manager.\nAPPEAL by petitioner from Lewis iRobert D.), Judge. Order entered 10 June 1985 in Superior Court, WATAUGA County. Heard in the Court of Appeals 14 February 1986.\nLegal Services of the Blue Ridge, Inc., by Robert W. Lehrer, for petitioner appellant.\nEmployment Security Commission of North Carolina, by C. Coleman Billingsley, Jr., for respondent appellee." }, "file_name": "0586-01", "first_page_order": 610, "last_page_order": 617 }