LORETTA Z. SLIGER,                )
                                  )       Putnam County Chancery
      Petitioner/Appellee,        )       No. 95-125
                                  )
VS.                               )
                                  )
BILLY J. STOKES, Commissioner     )
of the Tennessee Department of    )       Appeal No.
Employment,                       )       01-A-01-9609-CH-00403
                                  )
      Respondent,                 )
                                  )
and                               )
                                  )
                                                FILED
COOPER INDUSTRIES, WAGNER         )
LIGHTING DIVISION,                )               April 11, 1997
                                  )
      Respondent/Appellant.       )             Cecil W. Crowson
                                               Appellate Court Clerk

                 IN THE COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION AT NASHVILLE

       APPEAL FROM THE CHANCERY COURT OF PUTNUM COUNTY
                   AT COOKEVILLE, TENNESSEE

                     HONORABLE VERNON NEAL, JUDGE


MS. MARLA K. WILLIAMS, BPR. NO. 014167
Rural Legal Services of Tennessee
P.O. Box 637
Cookeville, Tennessee 38501
ATTORNEY FOR PLAINTIFF/APPELLEE


CATHERINE B. CASTLEMAN, BPR. No. 009758
Tenn. Dept. Of Employment Security
12th Floor, Volunteer Plaza
500 James Robertson Parkway
Nashville, TN 37245-0100
ATTORNEY FOR DEFENDANTS/APPELLANTS

JIM H. CAMP, BPR. No. 003029
P. O. Box 540
Sparta, TN 38583
ATTORNEY FOR DEFENDANTS/APPELLANTS

                    REVERSED, VACATED AND REMANDED


                                  HENRY F. TODD
                                  PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS
BEN H. CANTRELL, JUDGE
LORETTA Z. SLIGER,                            )
                                              )       Putnam County Chancery
       Petitioner/Appellee,                   )       No. 95-125
                                              )
VS.                                           )
                                              )
BILLY J. STOKES, Commissioner                 )
of the Tennessee Department of                )       Appeal No.
Employment,                                   )       01-A-01-9609-CH-00403
                                              )
       Respondent,                            )
                                              )
and                                           )
                                              )
COOPER INDUSTRIES, WAGNER                     )
LIGHTING DIVISION,                            )
                                              )
       Respondent/Appellant.                  )


                                       OPINION


       This is an unemployment compensation case in which the petitioner sought judicial relief

from the denial of benefits by filing a petition for certiorari as provided by TCA § 50-7-304(h).

The Trial Judge reversed the denial of benefits and remanded to the Agency for award of

benefits. The employer, Cooper Industries, Wagner Lighting Division, has appealed and

presented the following issue:

               Whether the Trial Court erred in reversing the findings of the
               Administrative tribunal, there being substantial and material
               evidence in the record to support the decision of the Board
               of Review.


       The employee has presented the following issues:

               I.      Whether an employee whose employer sends a letter
               of termination while she is out on medical leave is discharged
               or has voluntarily quit.

               2.      Whether the voluntary quit disqualification provision
               found at Tenn. Code Ann. § 50-7-303(a) (1) is applicable to
               this case.

               3.      Whether Ms. Sliger was able and available for work.


       The brief of the employer admits that petitioner was employed by the employer from

December 11, 1978, until August 9, 1994.


                                              -2-
       In February, 1994, the employee suffered a broken leg in an accident unrelated to her

work. The employer granted her a medical leave of absence.



       On May 12, 1994, the employee filed with the Department of Employment Security an

application for employment benefits. In response to an inquiry from the Department, the

employer responded on May 17, 1994:

               Loretta is on a “Leave of Absence” - medical with our company. She
               has not terminated her employment with us as of to date (sic).


       In May, 1994, the employee requested termination of the medical leave and reassignment

to work, supported by certificate of her physician dated May 11, 1994 and stating:

               The individual is able to work with the following restrictions:
               Not able to stand or walk at work.


       The employee’s request was not granted.



       On May 24, 1994, the application for benefits was denied. On July 27, 1994, the denial

was affirmed by the Appeals Tribunal.



       The employer had a policy that terminated employees who used 180 days of leave in one

year. As to her knowledge of this rule, the employee testified:

               Mr. Martin: On medical leave it was redesigned, so they - they
               have a policy at the Lighting - at Cooper Lighting that - that
               you’re automatically terminated after you expire 180 days
               leave in one year?

               Ms. Sliger: I was completely unaware of this until I was off
               two and a half months. I asked other people inside the factory.
               They were unaware of it. When I got my termination statement
               they were made or had - they acknowledged it then to the
               factory.



       On August 10, 1994, the employer wrote the employee as follows:

               I hope this letter finds you in good spirits and returning to
               good health. As you are aware, our company policy
               provides an employee up to 180 days in a calendar year

                                              -3-
                for a medical leave of absence. Your leave of absence
                began in February of 1994 and is still continuing. However,
                you have reached your maximum amount of time, as of
                August 9, 1994, for a leave of absence and now we must
                remove you from employment with us.

                If you have questions regarding your Co-Sav and Retirement
                Account, please contact Kathy Clouse. Attached is a letter
                and election form explaining continuation of health care
                (COBRA) coverage.



       On August 16, 1994, the employee filed a second claim for compensation supported by

the following statement:

                I have not worked since I filed my last claim. I am still
                under the care of my doctor - I have been released to return
                to other work - but I still can not do standing work. I did
                injure myself in an accident off of the job. I was on
                medical leave but my medical leave expired 8-9-94. My regular
                job that I had with Cooper Industries once required climbing
                stairs - that is no longer required on that job. Since the job no
                longer requires climbing I can do my regular job.



       On August 26, the Department denied the second claim because the employee was not

able to work.



       On August 31, 1994, the employee’s physician certified:

                This individual is able to work with the following restrictions:
                No climbing, continuous standing or walking. Expect two
                months before regular full duty work. May do sitting work.


       The employee appealed to the Department Appeals Tribunal which held a hearing on

September 27, 1994.



       On September 29, 1994, the Tribunal rendered its decision affirming the decision of the

Department, stating:

                FINDINGS OF FACT: Claimant’s most recent employment
                prior to filing this claim was with Cooper Lighting, from
                October 27, 1980, until August 9, 1994, as a manufacturing
                attendant. Claimant was injured in a non-work related
                accident that broke both bones in her leg. Employee refused

                                               -4-
       to offer employment based on her restrictive medical statement
       containing no standing or constant walking. Claimant
       requested a seated job such as inspector, but was denied.
       Claimant was then terminated on August 9 by letter dated
       August 10 for exceeding the leave policy of 180 days in a
       calendar year. Claimant continued to look for employment
       that met her conditions and was successful in finding employ-
       ment for 22 hours per week which required standing 75
       percent of the time. This job began on September 20, 1994,
       and she works as a maid. Claimant also returned to her doctor
       and received a less restrictive statement that requires no
       climbing, continuous standing, or walking. She was told it
       would be two months before she could do regular, full-duty
       work. She is allowed to do seated work. Claimant said she is
       continuing to look for work and is not limited by shift or hours.

       CONCLUSIONS OF LAW: The Appeals Tribunal is of the
       opinion claimant has not presented her employer with
       competent medical statement that released her to perform her
       normal duties. The employer is under no duty to provide
       claimant with an alternative job which is not her regular job.
       We find claimant was ineligible effective week ending August
       20, 1994, due to not being released by her doctor as able to
       return to her normal job. Claimant is ineligible under the
       meaning of TCA 50-7-302(a)(4). The Agency decision is
       affirmed.



The employee appealed to the Board of Review on the following issue:

       TCA § 50-7-303 (a) (1) - whether claimant voluntarily left her
       job without good cause connected with work; if claimant was
       forced to leave work due to sickness or disability (supported
       by competent medical proof), whether she notified her employer
       of this as soon as reasonably practical and returned and offered
       herself to perform her former duties as soon as she was able.



TCA § 50-7-302 provides in pertinent part as follows:

         Benefit eligibility conditions. - (a) Personal eligibility
       conditions. An unemployed claimant shall be eligible to receive
       benefits with respect to any week only if the commissioner finds
       that all of the following conditions are met.

         (4) The claimant is able to work, available for work, and
       making a reasonable effort to secure work. In determining
       whether the claimant is making a reasonable effort to secure
       work, the commissioner shall consider the customary methods
       of obtaining work in the claimant’s usual occupation or any
       occupation for which the claimant is reasonably qualified, the
       current condition of the labor market, and any attachment the




                                      -5-
       claimant may have to a regular job.


TCA § 50-7-303(a)(1) provides as follows:

          Disqualification for benefits. - (a) Disqualifying Events. A
       claimant shall be disqualified for benefits:

          (1) If the commissioner finds that the claimant has left such
       claimant’s most recent work voluntarily without good cause
       connected with such claimant’s work. Such disqualification shall
       be for the duration of the ensuring period of unemployment and
       until such claimant has secured subsequent employment covered
       by an unemployment compensation law of this state, or another
       state, or of the United States, and was paid wages thereby ten
       (10) times such claimant’s weekly benefit amount. No disquali-
       fication shall be made hereunder, however, if such claimant
       presents evidence supported by competent medical proof that
       such claimant was forced to leave such claimant’s most recent
       work because such claimant was sick or disabled and notified
       such claimant’s employer of that fact as soon as it was reason-
       ably practical to do so, and returned to that employer and
       offered to work as soon as such claimant was again able to
       work, and to perform such claimant’s former duties.


On January 9, 1995, the Board held a hearing at which petitioner testified as follows:

       Ms. Williams: Okay. You last worked there in February 1994.
       Is that right?

       Ms. Sliger:    Yes.

       Ms. Williams: And you left for what reason?

       Ms. Sliger:    I had a broke leg.

       Ms. Williams: And this was a non-work related injury.

       Ms. Sliger:    Yes.

       Ms. Williams: When - at what point, Mrs. Sliger, did you
       present yourself back to work at Cooper, and request that you
       be able to return to work there?

       Ms. Sliger:    As soon as I went and talked to them about my
       insurance, paying it up. I guess it was two months.

       Ms. Williams: Did you feel at the time that you were able to -
       to do some work there?

       Ms. Sliger:    Yes.

       Ms. Williams: But you didn’t feel like you were able to return
       to your most recent job that you had done there?



                                      -6-
Ms. Sliger:    No.

Ms. Williams: Okay. When - at what point, Mrs. Sliger, did
you feel that you were able to return to your past job, which
you testified at previous hearings was a manufacturing
attendant? At what point did you think you could go back to
that?

Ms. Sliger:      I could have went back - it was before Thanks-
giving, I’d say.

Ms. Williams: Okay. What was the event that led to the
separation of your employment, Mrs. Sliger.

Ms. Sliger:     Due to me being out on a medical leave too
long, they say.

Ms. Williams: Okay. And that was - that information was
communicated to you by the August 10th letter. Is that right?


Ms. Sliger:    Yes.

Ms. Williams: And at that time, you were working?

Ms. Sliger:    Yes.

Ms. Williams: Okay. But you - you wanted to get back - go
back to your job at Cooper?

Ms. Sliger:    Yes, because I had almost 16 years in.

Ms. Williams: Okay. And Dr. Branton had gave you some
medical restrictions. Did you feel that you were able to do
your past work there as a manufacturing attendant with those
restrictions?

Mr. Wilson: Okay. Is that - did I understand the last - your
last question was you felt like you could do the job of manu-
facturing attendant with the restrictions?

Ms. Sliger:    Yes. Where were ---

Mr. Wilson:    In this August 31st ---

Ms. Sliger:    Right. Uh-huh.

Mr. Wilson:    --- doctor’s statement?

Ms. Sliger:    Uh-huh.

Mr. Wilson: But I take it that Cooper Industries didn’t think
you could do it with those restrictions? Is that ---

Ms. Sliger:    Evidently.



                              -7-
       Ms. Williams: And this medical certificate was dated August
       31st.

       Mr. Wilson: Have - have you been back, Ms. Sliger, to
       reapply for work there since you got that August 10th letter?

       Ms. Sliger:    No.

       Mr. Wilson: You haven’t tried? I noticed you’re on
       crutches this morning. Is this on-going recovery from those
       injuries?

       Ms. Sliger:    Yes.

       Mr. Wilson:    Are you still in the process of recovering?

       Ms. Sliger:    Yes.


On February 15, 1995, the Board issued its decision containing the following:

       FINDINGS OF FACT: The claimant’s most recent work before
       filing this claim was with Cooper Industries, from October 27,
       1980, until February, 1994. The claimant left work in February
       1994, when she was injured while off duty. She was placed on a
       leave of absence and was unable to work at all for several months.
       She was eventually released to perform light duty work. She offered
       to return but the employer had no light duty work available. In
       August, the leave of absence expired according to the employer’s
       policy. At that time the employer sent the claimant a politely worded
       letter telling her that the leave had expired and that she was being
       “removed” from employment. She still had not recovered from
       the injury sufficiently to perform her former job.

       A few days after receiving the letter, to claimant’s doctor released her
       to do sufficient activity so that she could perform her former job. She
       did not return and offer herself to the employer to perform full duty.
       She has not had contact with the employer since being released by the
       doctor. Instead, she filed this unemployment claim.

       CONCLUSIONS OF LAW: The Board of Review holds that the
       claimant is disqualified for benefits under TCA § 50-7-303 (a)(1),
       because she voluntarily left her job without good cause connected
       with the work and did not return and offer herself to perform her
       former duties as soon as she was able.

       The claimant voluntarily left her job in February, 1994, for purposes
       of this unemployment claim, even though she continued to have
       some relationship with the employer (see the definition of
       “unemployment” contained in TCA § 50-7-211). The claimant’s
       separation in February was voluntary and without good cause
       connected with the work because she left due to an injury that
       occurred while off duty. Under these circumstances and under TCA §
       50-7-303 (a) (1), she is disqualified for benefits until she earns ten
       times her weekly benefit amount in other employment, or until she
       sufficiently recovers to perform her former job, returns to the


                                      -8-
              employer and offers to work and is not reemployed. In this case the
              claimant did not return to the employer and offer to work when she
              sufficiently recovered to perform her former duties. Therefore
              she is disqualified for benefits under TCA § 50-7-303 (a) (1). The
              decision of the Appeals Tribunal is affirmed.

              DECISION: The decision of the Appeals Tribunal is affirmed and
              the claim is denied as of the date of filing under TCA 50-7-303(a)(1).


       Upon petition for certiorari, the Trial Court considered the matter upon the administrative

record and held:

              After consideration of the arguments of both parties and the
              entire record, the Court finds and holds that Loretta Z. Sliger
              was wrongfully terminated by her employer and there is material
              and substantial evidence in the record to support the Board of
              Review’s conclusion that Ms. Sliger was able to work when she
              filed her claim, but the decision of the Board of Review that the
              petitioner voluntarily quit her job without good cause connected
              with her work is not supported by evidence which is both
              material and substantial in light of the entire record, and its
              decision that she voluntarily quit is erroneous as a matter of law.
              The decision of the Court is more fully set forth in the
              Memorandum Opinion entered on January 2, 1996; that opinion
              is fully incorporated herein but need not be repeated verbatim.



       The memorandum of the Trial Judge contains the following:

                 The Board of Review concluded that claimant did not reapply
               for work with Cooper Industries after having received the
               medical report from Dr . Bratton dated August 31, 1994. The
               court is unaware of any case or authority which requires an
               employee to return to an employer who has discharged such
               employee in violation of its own work policies and reapply for
               work in order to be eligible for unemployment compensation
               benefits. It is apparent in this case that such requirement would
               have been an unreasonable and fruitless effort inasmuch as the
               employer terminated her employment and demonstrated it had
               no desire to let her work so long as any physical restrictions
               existed.

                  The court finds and holds that claimant was wrongfully
               terminated by her employer and there is material and substantial
               evidence in the record to support the Board of Review’s
               conclusion that Ms. Sliger was able to work when she filed her
               claim, but the decision of the Board of Review that petitioner
               voluntarily quit her job without good cause connected with her
               work is not supported by evidence which is both material and
               substantial in light of the entire record and its decision that she
               quit voluntarily is erroneous as a matter of law. Accordingly,
               the decision of the Board of Review denying petitioner’s
               eligibility for unemployment compensation benefits is reversed,

                                              -9-
               and this cause is remanded to the Board of Review for the
               entry of an order awarding petitioner such unemployment
               compensation benefits that she may otherwise be entitled to
               under the unemployment security laws.



       From the length of the administrative proceedings narrated above, the reaction of the

Trial Judge is understandable. However, it must be remembered that this action does not involve

health or disability insurance, or wrongful discharge. It involves unemployment compensation

benefits payable only to a person who is able and willing to work, but is discharged or denied

restoration after an absence for illness or disability. See TCA § 50-7-303(a) (1).



       Unquestionably, petitioner was absent from work, with the permission of her employer,

from February, 1994, until her discharge in August, 1994, for a disability from a non-work

related injury. Unquestionably, she made a partial recovery and offered to return but was refused

because she was not fully recovered. During the pendency of her unemployment claim, she again

sought to return, but was denied because her physicians certificate limited her activities. Even

though petitioner was of the opinion that she could perform all her former duties with her

residual disability, she has not supported her application for reinstatement with her doctor’s

certificate that her previously certified disability no longer exists. The subsequent, August 31,

1994, certificate of the physician is substantial and material evidence supporting the finding of

disability to return to work, ergo present disqualification to receive unemployment benefits..



       The foregoing is determinative in the present appeal, hence the effect of the August 10,

1994, termination by the employer need not be considered.




                                              -10-
       The judgment of the Trial Court is reversed and the decision of the Board of Review is

affirmed. All costs, including costs of this appeal are taxed against the petitioner. The cause is

remanded to the Trial Court for further appropriate proceedings.




                           REVERSED AND REMANDED



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION


                                               ___________________________________
                                               SAMUEL L. LEWIS, JUDGE


                                               ___________________________________
                                               BEN H. CANTRELL, JUDGE




                                              -11-
