Heimsoth v. Kellwood Co.

• Decision Date: 02 April 1982
• Docket Number: No. 44461,44461
• Parties: Robert G. HEIMSOTH, Appellee, v. KELLWOOD COMPANY, Appellee, and John R. Hanlon, Commissioner of Labor, Appellant.
• Court: Nebraska Supreme Court

Page 1

318 N.W.2d 1

211 Neb. 167

Robert G. HEIMSOTH, Appellee, v. KELLWOOD COMPANY, Appellee, and John R. Hanlon, Commissioner of Labor, Appellant.

No. 44461.

Supreme Court of Nebraska.

April 2, 1982.

Syllabus by the Court

1. Employer and Employee: Appeal and Error: Case Overruled. Appeals under the Employment Security Law are reviewed de novo on the record from the District Court and it is the duty of this court to retry the issues of fact involved in the findings complained of and reach an independent conclusion thereof. To the extent that Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981), is inconsistent with this opinion, it is overruled.

2. Employer and Employee: Termination of Employment. An individual who leaves work voluntarily without good cause shall be subject to the benefit disqualification period specified by statute.

Pamela A. Mattson, Lincoln, for appellant.

Noel S. Dekalb, Lincoln, and Marsha E. Fangmeyer, Beatrice, for appellee Heimsoth.

No appearance for appellee Kellwood.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and BRODKEY, J., Retired.

PER CURIAM.

Robert G. Heimsoth, the claimant-appellee herein, filed for unemployment compensation benefits under the Nebraska Employment Security Law. The claims deputy, and on appeal the Nebraska Department of Labor Appeal Tribunal, determined that the claimant voluntarily left his employment as of September 16, 1980, without good cause and disqualified him for unemployment benefits for the week ending September 20, 1980, through November 8, 1980, with a subsequent additional 7-week reduction in maximum benefits if claimant were to file for such benefits after the above period, assuming him to be otherwise eligible therefor. On appeal to the District Court of Nebraska in and for Jefferson County, Nebraska, the decision of the tribunal was reversed, from which judgment the state Commissioner of Labor now appeals to this court.

The commissioner's various assignments of error can be summarized into a single one, namely, the District Court erred in finding that Heimsoth left his employment voluntarily with good cause for medical reasons. We agree with the commissioner and reverse the judgment of the District Court.

We first address the scope of review in this court, concerning which we have made conflicting statements.

In A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958), we held that appeals under the provisions of the Employment Security Law, see Neb.Rev.Stat. §§ 48-638 and 48-639 (Reissue 1978), must be heard by the District Court de novo on the record, although either party may offer additional evidence after proper notice, and that this court also considers such appeals de novo on the record. See, also, Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949); Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942). In Glionna v. Chizek, 204 Neb. 37, 281 N.W.2d 220 (1979), we reaffirmed that standard of review and observed it is our duty to retry the issues of fact involved in the findings complained of and reach an independent conclusion thereof. In Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981), we stated that de novo review in this court is limited to and governed by the standards of the Administrative Procedures Act. However, in Walker Mfg. Co. v. Pogreba, 210 Neb. 619, 316 N.W.2d 315 (1982), we reaffirmed that our review is de novo on the record.

The pertinent statute, Neb.Rev.Stat. § 48-640 (Reissue 1978), provides: "An appeal may be taken from the decision of the district court to the Supreme Court of Nebraska in the same manner, but not inconsistent with the provisions of sections 48-601 to 48-668, as is provided in cases arising under the workmen's compensation law." Section 48-639 provides in pertinent part: "In any judicial proceeding under sections 48-638 to 48-640 the court shall consider the matter de novo upon the record...." We conclude that § 48-640 contemplates a de novo review on the record in this court; therefore, our statement in Bristol v. Hanlon, supra, that our review in these appeals is limited by the Administrative Procedures Act was incorrect. The scope of review is de novo on the record from the District Court and it is the duty of this court to retry the issues of fact involved in the findings complained of and reach an independent conclusion thereof. To the extent Bristol v. Hanlon, supra, is inconsistent with this opinion, it is overruled.

We find that Heimsoth was employed in the shipping department of the Fairbury, Nebraska, division of Kellwood Company on July 9, 1979. Kellwood Company is a manufacturer of coats and other items of wearing apparel. The claimant's duties as a laborer in the Kellwood shipping department included the tagging, packing, bagging, and strapping of the apparel items prior to their shipment by carrier. Heimsoth continued in his duties with Kellwood until January 9, 1980, when he was required to take a medical leave of absence for back surgery. Heimsoth underwent surgery on January 15, 1980, and was hospitalized for approximately 28 days.

During the period of his recovery, Heimsoth sought unemployment benefits. He was contacted by the personnel manager for Kellwood and told his employment would have to be terminated in order for him to qualify for such benefits. The personnel manager indicated that a clerical position was being held open for claimant in the Kellwood shipping office. The duties of a shipping clerk are generally less physical than those of a shipping laborer and require less standing, pushing of garments, and climbing.

As claimant did not desire to terminate his employment, he obtained a medical release from his physician with the understanding that he would be doing clerical work rather than the physical labor required in the shipping department. Upon the presentation of the medical release, Heimsoth was allowed to return to work at Kellwood. Although the medical release was without restriction, it is clear that Heimsoth had discussed his recent surgery and prior back problems with his supervisors and they agreed to accommodate him as much as possible so that he could work in a seated position. Upon his return to work in June of 1980, Heimsoth was assigned to his former duties as a shipping laborer and provided a piece of board to put across a chair so he could perform such duties while seated. After a period of about 2 months Heimsoth was moved to the shipping office where he worked as a shipping clerk. About a month later he was again assigned the duties of a shipping laborer. He volunteered to work a 12-hour shift, but protested to his supervisor that he had been hired to do clerical work.

The voluntary resignation signed by claimant on September 22, 1980, recited that he terminated for "medical reasons." He testified before the Nebraska Department of Labor Appeal Tribunal that he "knew that if I continued working the type of work that I was being asked to do, that it could eventually create a problem. But there was no problem created as yet." He further testified before the tribunal that he felt fine, that medical reasons were not a major factor in leaving his employment, and that he terminated principally because he did not see a way to work in the shipping office. Before the District Court he testified that his back was "hurting terribly" when he clocked out...