Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE
                                                    REVIEW BOARD:
MICHAEL G. SHANLEY
PITTMAN & PAGE, LLC                                 GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    KATHY BRADLEY
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                                                              Feb 28 2014, 9:09 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

LEON RICE, INC.,                                    )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 93A02-1306-EX-477
                                                    )
REVIEW BOARD OF THE INDIANA                         )
DEPARTMENT OF WORKFORCE                             )
DEVELOPMENT and ROGER ANDERSON,                     )
                                                    )
       Appellees-Respondents.                       )


                        APPEAL FROM THE REVIEW BOARD
                OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT
                                Case No. 13-R-1558



                                        February 28, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       Leon Rice, Inc. (“Rice”), appeals the determination of the Review Board of the

Indiana Department of Workforce Development (“the Review Board”) that Roger Anderson

is eligible for unemployment benefits because he was involuntarily unemployed due to a

medically substantiated physical disability and had made reasonable efforts to maintain his

employment relationship.     On appeal, Rice argues that the Review Board erred in

determining that Anderson made reasonable efforts to maintain his employment relationship.

Because we cannot say that the Review Board’s determination was unreasonable, we affirm.

                              Facts and Procedural History

       The evidence most favorable to the Review Board’s decision follows. Rice is a drain

company. Anderson worked full time at Rice from November 2005 through November 7,

2011, most recently as a service technician. Anderson’s job required him to use multiple

pieces of machinery, tools, and equipment. The lightest piece of machinery weighs

approximately forty pounds. Twice a month Anderson filled in for Rice’s full-time

supervisor. Rice required supervisors to be capable of performing the job they were

overseeing due to the possibility that the service technician might need assistance.

       On or about November 8, 2011, Anderson sought medical treatment for his elbow.

Anderson’s elbow was infected, and he needed surgery. He informed Rice that he was at the

hospital and had had surgery. Rice asked Anderson to maintain contact and advise Rice

when he could return to work.




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      Anderson’s doctor released him to return to work with lifting restrictions. Anderson

told Rice that he was ready to return to work. Anderson provided Rice with medical releases

dated November 14, 2011, and November 23, 2011, each containing five-pound lifting

restrictions. Rice did not have any work for Anderson with these weight restrictions. Rice

told Anderson that when the weight restriction were higher, he could come back to work.

Anderson provided Rice with medical releases dated January 4, 2012, and February 22, 2012,

which contained ten-pound lifting restrictions, and March 14, 2012, which contained a

twenty-pound lifting restriction. Rice did not contact Anderson to tell him to come back to

work. It is undisputed that Rice did not have any work, including work as a supervisor, for

Anderson even with the increased weight restrictions.

      Rice did not receive any further communication from Anderson after the March 14

release. Two months passed, and in May 2012, Rice assumed that Anderson had quit and

removed him from its payroll. Between March and August 2012, Anderson was undergoing

physical therapy for his elbow and did not have any doctor’s appointments. In August,

Anderson was cleared to lift seventy-five to eighty pounds.1

      Anderson applied for unemployment benefits. A claims deputy determined that

Anderson voluntarily left employment without good cause and was ineligible for

unemployment insurance benefits. Anderson appealed. Following a hearing at which

Anderson and Rice’s owner participated, the administrative law judge (“ALJ”) reversed the

deputy’s decision. Specifically, the ALJ found that Anderson was involuntarily unemployed


      1
          Even at that restriction, Rice did not have work that Anderson was capable of performing.

                                                    3
due to a medically substantiated physical disability and had made reasonable efforts to

maintain the employment relationship and therefore was eligible for unemployment benefits.

Rice appealed the decision of the ALJ to the Review Board, which affirmed the ALJ’s

decision. Rice appeals now appeals the Review Board’s decision.

                                  Discussion and Decision

       The Indiana Unemployment Compensation Act (“the Act”) provides that any decision

of the Review Board shall be conclusive and binding as to all questions of fact. Ind. Code §

22-4-17-12(a). When the Review Board’s decision is challenged as being contrary to law,

our review is limited to a two-part inquiry into: “(1) ‘the sufficiency of the facts found to

sustain the decision;’ and (2) ‘the sufficiency of the evidence to sustain the findings of

facts.’” McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317

(Ind. 1998) (quoting Ind. Code § 22-4-17-12(f)). Applying this standard, we review “(1)

determinations of specific or ‘basic’ underlying facts, (2) conclusions or inferences from

those facts, sometimes called ‘ultimate facts,’ and (3) conclusions of law.” Id. The Review

Board’s findings of basic fact are subject to a “substantial evidence” standard of review. Id.

In conducting our analysis, we neither reweigh evidence nor judge witness credibility; rather,

we consider only the evidence most favorable to the Review Board’s findings. Id. The

Review Board’s conclusions regarding ultimate facts involve an inference or deduction based

on the findings of basic fact, and we typically review them to ensure that the Review Board’s

inference is “reasonable” or “reasonable in light of its findings.” Id. at 1317-18 (citation and




                                               4
quotation marks omitted). We review the Review Board’s conclusions of law using a de

novo standard. Ind. State Univ. v. LaFief, 888 N.E.2d 184, 186 (Ind. 2008).

       The purpose of the Act is to provide unemployment benefits to individuals who are

“unemployed through no fault of their own.” Ind. Code § 22-4-15-1. A person who

voluntarily leaves employment without good cause in connection with the work is

disqualified from receiving unemployment benefits. Ind. Code § 22-4-15-1(a). Here, the

Review Board found that Anderson was not disqualified from receiving unemployment

benefits pursuant to Indiana Code Section 22-4-15-1(c)(2), which provides, “An individual

whose unemployment is the result of medically substantiated physical disability and who is

involuntarily unemployed after having made reasonable efforts to maintain the employment

relationship shall not be subject to disqualification under this section for such separation.”

       Rice does not dispute that Anderson had a medically substantiated physical disability

but argues that the Review Board erred in determining that Anderson made reasonable efforts

to maintain the employment relationship. This is a conclusion of ultimate fact that we review

for reasonableness. Rice asserts that another employee informed it that Anderson was taking

truck driving school, and that after two months of no communication, it was reasonable for it

to assume that Anderson had quit and therefore his termination was proper. However, the

issue before us is not whether Rice’s assumption that Anderson had quit was reasonable.

Rather, the issue is whether the Review Board’s determination that Anderson made

reasonable efforts to maintain the employment relationship is reasonable.




                                              5
       Here, Anderson contacted Rice from the hospital and reported that he had surgery.

Rice told Anderson to inform it when he was ready to return to work. Anderson then

contacted Rice five times with medical releases indicating that he was ready to return to

work, albeit with weight restrictions. After the weight restrictions had been lifted from five

to twenty pounds, Anderson did not receive a response from Rice to return to work.

Anderson began physical therapy in March and did not have new medical updates to provide

to Rice. As Anderson still had the same weight restrictions, there was no reason for him to

think that Rice had work for him. In August, when the weight restrictions had been lifted to

seventy-five to eighty pounds, Anderson had already been removed from Rice’s payroll.

Based on these circumstances, we cannot say that the Review Board’s determination that

Anderson made reasonable efforts to maintain the employment relationship was

unreasonable. Rice’s other arguments are merely requests to reweigh evidence, which we

may not do. Accordingly, we affirm the Review Board’s decision that Anderson is eligible

for unemployment benefits.

       Affirmed.

BAKER, J., and NAJAM, J., concur.




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