Gray, In re, 1924

• Decision Date: 10 December 1968
• Docket Number: No. 1924,1924
• Citation: 248 A.2d 693,127 Vt. 303
• Parties: In re John Patrick GRAY.
• Court: Vermont Supreme Court

Page 693

248 A.2d 693

127 Vt. 303

In re John Patrick GRAY.

No. 1924.

Supreme Court of Vermont.

Dec. 10, 1968.

Bishop & Crowley, Rutland, for petitioner.

Latham & Eastman, Burlington, for United Parcel Service.

Raymond S. Fitzpatrick, Barre, for Vermont Employment Security Board.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

John Patrick Gray, separated from his employment, filed a claim for unemployment benefits. His employer, an interested party because benefits paid to the claimant affect the employer's contribution rate (21 V.S.A. § 1326), asserted that the discharge was based on misconduct. Under 21 V.S.A. § 1344, discharge for misconduct connected with his work subjects a claimant to a penalty of loss of benefits of not more than twelve weeks nor less than six weeks.

The claims examiner, after hearing, assessed the six week penalty. This was affirmed by the chief appeals referee, but reversed on hearing before the full employment security board. The employer brought the matter here for review.

The claimant applied to the employer for work in its parcel delivery service. He was required to fill out various application forms, including a medical history, and have a pre-employment physical examination. One of the forms required him to indicate by check mark whether or not he had ever had or been treated for over one hundred different kinds of diseases or physical problems. He checked 'yes' to sinus trouble and to chest pain and 'no' to back trouble.

As a matter of routine, since the claimant was recently discharged from the Air Force, the employer's medical department requested and received copies of his military medical history. On a form completed at the time of his discharge he gave an affirmative answer to the question, 'Have you had recurrent back pain?'

It was the policy of the employer, known and understood by the claimant, to immediately dismiss an employee in the event of misrepresentation, omission of fact or making of a false statement on the employment application. The medical department reported his acknowledgment of recurring back pain as inconsistent with his failure to acknowledge back trouble on his application. His discharge followed.

The evidence developed that the recurrent back pain reported on the discharge form related to chest and back pains caused by a session with bronchitis and sinus trouble. As mentioned, the sinus trouble was reported on his application form. The military history also revealed a single instance nearly two years previous to discharge when he had been put on light duty for 48 hours because of lower back pain reported at sick call. His duty involved installation of aircraft cannon weighing 130 pounds. After this single episode he returned to regular duty and had no further such trouble. He has had no back difficulty of any kind since his discharge from the Air Force.

The propriety of the discharge is not called into question in these proceedings. We are only concerned with the claimant's...