(dissenting).
I find myself in agreement with the deputy and the referee who denied compensation to this claimant.
In addition to the rules of law set forth in the majority opinion, with which I agree, I would point out that the burden of proof is upon claimant to establish his rights to benefits under the Iowa Employment Security Law. Spence v. Iowa Employment Security Commission (1957), 249 Iowa 154, 86 N.W.2d 154.
I would also point out claimant left work voluntarily without good cause attributable to the employer. In order to show his right to unemployment benefits he must bring himself within the exception contained in section 96.5(1) (d) providing it is not a voluntary quit if:
“He left his employment because of illness or injury upon the advice of a licensed and practicing physician, and upon knowledge of the necessity for such absence immediately notified his employer, or his employer consented to such absence, and after recovering from such illness or injury when recovery is certified by a licensed and practicing physician, he returned to his employer and offered his service and his regular work or comparable suitable work was not available * *
As we are bound by the findings of the commission if they are supported by substantial and competent evidence, we must first look to these findings. The commission found:
“The claimant was employed over three years as a welder for Wilson Trailer Company of Sioux City, Iowa, to August 8, 1967. The claimant requested and was granted a leave of absence of three working days to have his teeth pulled. The record shows that he first had a general physical examination to determine if he was physically fit to have the dental surgery. After being declared as physically able to undergo the treatment, he entered St. Vincents Hospital where he had twenty-three teeth extracted. The general practitioner was present when the teeth were extracted on August 8, 1967. (Claimant Exhibit No. 1) He was released from the hospital on August 10, 1967.
“On August 14, 1967, he telephoned the employer that he was still unable to report to work. A week later, August 21, 1967, he again reported to the employer that he was unable to report for work.
“The claimant submitted two statements from his attending physicians verifying his hospitalization, and the one from Dr. W. E. Reynolds states the claimant was advised to remain off duty until August 28, 1967. (Claimant Exhibit No. 2) The statement from the dental surgeon verifies the extraction of twenty-three teeth for pyorrhea and rampant caries. There were two sutures in the right lower molar area and left lower molar area. On September 5, 1967, one unexposed root was removed in the office.
“The employer testified that the company arranged for a physical examination for the claimant to determine if he was physically able to undergo the extractions, and was given a leave of absence from August 8, 1967, through August 13, 1967. The employer called the dental surgeon by telephone prior to the extractions and was informed by the office nurse that three days off duty should be sufficient. On August 14, 1967, the employer’s personnel director telephoned the dental surgeon and was told that the claimant could return to work as he had been released.
“Another telephone call was made by the employer to the dental surgeon’s office on August 25, 1967, and the office nurse advised the claimant had not kept the August 15th appointment with the dentist. It was at that time the employer decided not to rehire the claimant. When the claimant *778reported for work on August 28, 1967, he was told he had been terminated. The record shows that the claimant did not submit a doctor’s release, nor did the employer request one from him.”
Based upon these findings the commission concluded: “In this case, the Commission must choose between the telephone conversations between the employer and the claimant’s dentist and his office nurse and the written statements of the claimant’s doctors. The Commission must hold that greater weight must be given the written statements of the claimant’s physicians than to the telephone conversations. The Commission, therefore, holds that the claimant has met the requirements of paragraph ‘d’ of the above section of the Iowa law and is relieved from disqualification by its provisions.”
I do not believe there is anything in the doctor’s written statements which contradict other findings and support these conclusions.
Dr. Konegni’s statement only describes the treatment given plaintiff. Dr. Reynolds statement states only that he recommended to claimant at or before the time of surgery that he not return to work until August 28. He did not examine him after that time.
McComber v. Iowa Employment Security Commission, 254 Iowa 957, 119 N.W.2d 792, and Raffety v. Iowa Employment Security Commission, 247 Iowa 896, 76 N.W.2d 787, relied on by the majority are not in point. In both cases it was decided there was no voluntary quit because the cause of the absence was attributable to the employer.
In McComber, claimant left the employment because she was allergic to the woolen materials with which she had to work. We said: “Section 96.5, subd. 1, par. d provides that disqualification for benefits does not result if the claimant left his work because of illness or injury and upon the advice of a physician and upon knowledge of the necessity for such absence immediately notified the employer who consented to the absence. These things were done; but the difficulty here is that, according to the facts found by the Commission, the work itself was responsible for the illness. Of course the quitting of the employment was in a sense voluntary on the part of the plaintiff; but we conclude that the facts found by the Commission show such quitting was for good cause attributable to the employer.” 119 N.W.2d at 795.
In Raffety, claimant was injured on the job. We said: “Where factors or circumstances directly connected with employment result in illness or disease to an employee and make it impossible for him to continue therein because of serious danger to his health, termination of employment for this reason may correctly be said to be involuntary and for ‘good cause attributable to the employer’, even though the employer be free from all negligence or wrongdoing in connection therewith.” 76 N.W.2d at 789. Section 96.5(1) (d) was not involved.
It may very well be claimant was not able to return to work after such major dental surgery, but in my opinion we are setting an unsound precedent if we hold plaintiff can meet the burden imposed upon him by section 96.5(1) (d) by using his own judgment as to his ability to return to work completely unsupported by competent medical evidence showing his condition was different from that expected by the employer when granted a limited leave of absence.
I would reverse.
MASON, J., joins in this dissent.