COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
CAROLYN M. SNYDER
OPINION BY
v. Record No. 2585-95-3 JUDGE SAM W. COLEMAN III
NOVEMBER 19, 1996
VIRGINIA EMPLOYMENT COMMISSION
and BLUE CROSS AND BLUE SHIELD
(TRIGON)
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
David D. Beidler (Nancy L. Brock; Legal Aid
Society of Roanoke Valley, on briefs), for
appellant.
Patricia H. Quillen, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Lisa J. Rowley, Assistant Attorney
General, on brief), for appellee Virginia
Employment Commission.
No brief of argument for appellee Blue Cross
and Blue Shield (Trigon).
Carolyn M. Snyder (claimant) appeals the Virginia Employment
Commission's (VEC) denial of unemployment benefits based upon its
finding that she left work voluntarily without good cause. The
claimant contends that she did not receive a fair hearing because
the VEC in reaching its decision relied upon "investigatory"
documents compiled by a deputy of the VEC. She further contends
that the evidence presented to the VEC was insufficient to
support its findings of fact. We find no error and affirm the
VEC's decision.
I.
In making their findings of fact, the appeals examiner and
the VEC relied upon documents included in the "Record of Facts
Obtained by Deputy." Snyder argues that she was denied the
opportunity to confront or rebut the evidence contained in the
"Record of Facts" because these documents were not introduced
into evidence or expressly made part of the record by the appeals
examiner during the evidentiary hearing. She argues, therefore,
that the documents in the "Record of Facts" were not a part of
the record which the VEC could consider and, thus, the hearing
was unfair. We disagree.
The VEC is not bound by the common law or statutory rules of
evidence. Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 426,
399 S.E.2d 630, 634 (1990). Code § 60.2-623 provides that:
[t]he manner in which disputed claims shall
be presented . . . shall be in accordance
with regulations prescribed by the Commission
for determining the rights of the parties.
Such regulations need not conform to common
law or statutory rules of evidence and other
technical rules of procedure.
The VEC has adopted rules governing the adjudication of claims
pursuant to its authority under Code § 60.2-623. See VR 300-01-8
Section 2.F (1994) ("The appeals examiner shall conduct the
hearing in such a manner as to ascertain the substantive rights
of the parties without having to be bound by common law,
statutory rules of evidence, or technical rules of procedure.").
The rule regarding appeals to the VEC states that, "[e]xcept
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as otherwise provided by this rule, all appeals to the VEC shall
be decided on the basis of a review of the record." VR 300-01-8
Section 3.B (1994) (emphasis added). Snyder contends that the
record referred to in VR 300-01-8 Section 3.B includes only the
transcript and exhibits from the evidentiary hearing conducted
before the appeals examiner. We disagree.
The VEC's rules use the term "record" in two different
instances. First, the regulations governing first level appeals
state that "the record in connection with the claim . . . shall
be assigned to an [appeals examiner]." VR 300-01-8 Section 2.B
(1994). This "record" that is sent to the appeals examiner
contains the "record of facts of the proceeding [before the
deputy]." VR 300-01-8 Section 1.B (1994). See also Code
§ 60.2-619 (A)(2) ("the deputy shall promptly transmit his full
finding of fact with respect to that subsection to any appeal
tribunal . . . ."). Second, the regulations addressing the
evidentiary hearing before the appeals examiner refer to "the
record" as the transcript and exhibits offered during the
hearing. See VR 300-01-8 Sections 2.F and 2.F.4 (1994).
We hold that the "Record of Facts Obtained by Deputy" was a
part of the record and the documents contained therein were
properly considered by both the appeals examiner and the VEC in
making their findings of fact. The documents were placed in the
VEC's file and became part of the VEC record for purposes of the
VEC's determination of the claim. At the evidentiary hearing,
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the appeals examiner noted for the record that Trigon had chosen
not to appear and made it known that Trigon had submitted a
letter stating that "the documentation we have previously
submitted fully states the company's position regarding Ms.
Snyder's past employment, and should give a complete picture of
our efforts and interactions with her." When Snyder's attorney
was asked if there were any objections, he did not object to
proceeding in this manner, which allowed the appeals examiner to
consider the documentation previously submitted by Trigon. The
purpose of the examiner introducing Trigon's letter was to put
the claimant on notice that Trigon was relying on documents
already in the VEC's files. This action gave the claimant an
opportunity to review those documents and informed her that the
appeals examiner was going to consider those documents when
making his decision. If the claimant had chosen to do so, she
could have inspected the file before or during the hearing,
stated her objection to any documents or statements therein, and
offered rebuttal evidence.
We find that Snyder's right to a fair hearing was not
violated. By not reviewing or inspecting the documents in the
record, Snyder chose not to exercise the options available to
her. Klimko v. Virginia Employment Comm'n, 216 Va. 750, 763, 222
S.E.2d 559, 569-70 (1976). To the extent that the "claimant did
not enjoy the right of confrontation and cross-examination or any
of the other rights available to [her] under the laws and
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regulations, it was not because they were denied [her]; it was,
insofar as the record discloses, only because [she] did not
pursue them." Id. Moreover, the record indicates that Snyder's
attorney had the documents which she complains she had no
opportunity to review or rebut. As the record shows, Snyder's
counsel's questions made reference to the forms that she
complains she did not know were part of the record:
Q: [O]n the . . . form that . . . Blue
Cross that Miss Cardna filled out
. . . apparently her impression was
that the last time you, you were
released . . . by your doctor to go
back to work on October 10th
. . . .
To the extent that Snyder now objects to the appeals examiner
having proceeded without an employer's representative being
present, Snyder could have objected at the hearing or could have
subpoenaed a representative of her employer to appear. See
Richardson v. Perales, 402 U.S. 389, 404 (1971) (holding that
claimant was precluded from complaining that he was denied the
rights of confrontation and cross-examination because he did not
take advantage of the opportunity to subpoena adverse witnesses
who had previously submitted reports); Baker, 11 Va. App. at
426-27, 399 S.E.2d at 634 (same). She failed to do so and her
claim will not be considered for the first time on appeal.
Snyder next contends that Trigon's evidence was hearsay and
as such, was insufficient to sustain Trigon's burden of proof.
Although the letters and the deputy's investigatory documents are
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hearsay, hearsay evidence is admissible in administrative
proceedings before the VEC. Baker, 11 Va. App. at 425, 399
S.E.2d at 634. Therefore, the VEC did not err in considering
this hearsay evidence.
Snyder argues that hearsay evidence alone is not sufficient
to meet the employer's burden of proof. Regardless of whether
hearsay alone is insufficient, in this instance sufficient
non-hearsay evidence was before the VEC to support its finding
that Snyder voluntarily quit her job without good cause. Snyder
testified that she received a letter from Trigon dated
November 3, 1994 which stated, "unless you are able to return to
work or return the short-term disability forms to us by
November 10, 1994, we will have no alternative but to consider
this a voluntary resignation by you." Further, she testified
that she did not send the forms to the Roanoke office, but
instead sent them to Richmond, and that, although she called, she
never spoke to anyone in Roanoke after receiving the November 3
letter.
The appeals examiner asked Snyder directly about Trigon's
allegations.
Q: Well Miss Cardna had notified the
Commission that . . . they could
not get you to respond to . . .
them. They couldn't . . . make any
contact with you. Would you like
to respond to that?
A: Yes, sir, I did too. I didn't even
know that she was in charge, you
know. . . .
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The testimony of Snyder's sister corroborated Trigon's attempts
to get in touch with Snyder and have her fill out the short-term
disability forms. Finally, the documents that were submitted
into evidence by Snyder also supported Trigon's claims. This
non-hearsay evidence supported Trigon's assertions that the
claimant had voluntarily quit.
II.
Claimant also asserts that the evidence was insufficient to
support the VEC's finding that she voluntarily quit her job
without good cause.
Code § 60.2-618 (1) states that:
An individual shall be disqualified for
benefits upon separation from the last
employing unit . . . if the Commission finds
such individual is unemployed because he left
work voluntarily without good cause.
Determining whether an employee voluntarily quit without good
cause is a mixed question of law and fact reviewable on appeal.
Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 493,
452 S.E.2d 692, 693 (1995).
When determining whether good cause existed
for a claimant to voluntarily leave
employment, the commission and the reviewing
courts must first apply an objective standard
to the reasonableness of the employment
dispute and then to the reasonableness of the
employee's efforts to resolve that dispute
before leaving the employment. In making
this two-part analysis, the claimant's claim
must be viewed from the standpoint of a
reasonable employee. . . . Factors that . . .
are peculiar to the employee and her
situation are factors which are appropriately
considered as to whether good cause existed.
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Umbarger v. Virginia Employment Comm'n, 12 Va. App. 431, 435-36,
404 S.E.2d 380, 383 (1991) (citations omitted).
The VEC did not err when it found that Snyder quit her
employment without good cause. In Shuler v. Virginia Employment
Comm'n, 9 Va. App. 147, 151, 384 S.E.2d 122, 124 (1989), we
stated that "absence from work without authorization will
constitute a voluntary abandonment of a job if done with notice
that a discharge will result . . . ." (Citations omitted).
Here, Snyder had notice that if she did not return her
short-term disability forms to Trigon, she would be considered to
have resigned. When Trigon proved that Snyder had notice that
her absence from work without authorization would constitute a
voluntary resignation, Snyder had the burden of going forward
with the evidence to prove that she provided Trigon the required
authorization. Snyder acknowledges that she knew of Trigon's
policy requiring her to provide medical verification after five
days of medical leave that her continued absence was due to a
medical disability. Furthermore, Snyder testified that she
received a letter from Trigon dated November 3, 1994 which
stated, "unless you are able to return to work or return the
short-term disability forms to us by November 10, 1994, we will
have no alternative but to consider this a voluntary resignation
by you."
Although Snyder testified that she sent the short term
disability forms to Richmond rather than the Roanoke office,
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Trigon had no record of having received the forms. The short
term disability form which she ultimately submitted was dated
December 5, 1994, which was after the date on which she was told
that her failure to file would be considered a voluntary
resignation and after she was told that Trigon considered that
she had resigned from her job. Although the VEC made no finding
as to whether the claimant had previously filed a short term
disability form with Trigon at its Richmond office as Snyder
claimed, the form that she ultimately submitted indicated that
Dr. Wayne Fralin had seen her on November 29, 1994, which was
after the date on which she was to have submitted authorization
for her absence or be considered to have voluntarily resigned
from her job. Snyder claimed to have previously faxed a copy of
a disability form, but she provided no other form other than that
of Dr. Fralin, to support her claim or to show that she had
timely filed the necessary proof.
Because Snyder did not prove that she timely returned the
forms to Trigon and because no evidence was offered to show good
cause for not returning them, Trigon met its burden of proof and
the VEC was correct in finding that Snyder voluntarily quit her
job without good cause.
In conclusion, the claimant received a fair hearing and the
evidence presented was sufficient to support the VEC's
determination. Accordingly, we affirm the decision of the
circuit court.
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Affirmed.
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