                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


CAROLYN M. SNYDER
                                               OPINION BY
v.        Record No. 2585-95-3          JUDGE SAM W. COLEMAN III
                                            NOVEMBER 19, 1996
VIRGINIA EMPLOYMENT COMMISSION
 and BLUE CROSS AND BLUE SHIELD
 (TRIGON)


          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                  Robert P. Doherty, Jr., Judge

          David D. Beidler (Nancy L. Brock; Legal Aid
          Society of Roanoke Valley, on briefs), for
          appellant.

          Patricia H. Quillen, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General; Lisa J. Rowley, Assistant Attorney
          General, on brief), for appellee Virginia
          Employment Commission.

          No brief of argument for appellee Blue Cross
          and Blue Shield (Trigon).


     Carolyn M. Snyder (claimant) appeals the Virginia Employment

Commission's (VEC) denial of unemployment benefits based upon its

finding that she left work voluntarily without good cause.     The

claimant contends that she did not receive a fair hearing because

the VEC in reaching its decision relied upon "investigatory"

documents compiled by a deputy of the VEC.   She further contends

that the evidence presented to the VEC was insufficient to

support its findings of fact.    We find no error and affirm the

VEC's decision.
                                  I.

     In making their findings of fact, the appeals examiner and

the VEC relied upon documents included in the "Record of Facts

Obtained by Deputy."    Snyder argues that she was denied the

opportunity to confront or rebut the evidence contained in the

"Record of Facts" because these documents were not introduced

into evidence or expressly made part of the record by the appeals

examiner during the evidentiary hearing.    She argues, therefore,

that the documents in the "Record of Facts" were not a part of

the record which the VEC could consider and, thus, the hearing

was unfair.    We disagree.
     The VEC is not bound by the common law or statutory rules of

evidence.     Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 426,

399 S.E.2d 630, 634 (1990). Code § 60.2-623 provides that:
          [t]he manner in which disputed claims shall
          be presented . . . shall be in accordance
          with regulations prescribed by the Commission
          for determining the rights of the parties.
          Such regulations need not conform to common
          law or statutory rules of evidence and other
          technical rules of procedure.


The VEC has adopted rules governing the adjudication of claims

pursuant to its authority under Code § 60.2-623.     See VR 300-01-8

Section 2.F (1994) ("The appeals examiner shall conduct the

hearing in such a manner as to ascertain the substantive rights

of the parties without having to be bound by common law,

statutory rules of evidence, or technical rules of procedure.").

     The rule regarding appeals to the VEC states that, "[e]xcept




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as otherwise provided by this rule, all appeals to the VEC shall

be decided on the basis of a review of the record."     VR 300-01-8

Section 3.B (1994) (emphasis added).     Snyder contends that the

record referred to in VR 300-01-8 Section 3.B includes only the

transcript and exhibits from the evidentiary hearing conducted

before the appeals examiner.    We disagree.

     The VEC's rules use the term "record" in two different

instances.    First, the regulations governing first level appeals

state that "the record in connection with the claim . . . shall

be assigned to an [appeals examiner]."    VR 300-01-8 Section 2.B

(1994).    This "record" that is sent to the appeals examiner

contains the "record of facts of the proceeding [before the

deputy]."    VR 300-01-8 Section 1.B (1994).   See also Code

§ 60.2-619 (A)(2) ("the deputy shall promptly transmit his full

finding of fact with respect to that subsection to any appeal

tribunal . . . .").    Second, the regulations addressing the

evidentiary hearing before the appeals examiner refer to "the

record" as the transcript and exhibits offered during the

hearing.     See VR 300-01-8 Sections 2.F and 2.F.4 (1994).

     We hold that the "Record of Facts Obtained by Deputy" was a

part of the record and the documents contained therein were

properly considered by both the appeals examiner and the VEC in

making their findings of fact.    The documents were placed in the

VEC's file and became part of the VEC record for purposes of the

VEC's determination of the claim.    At the evidentiary hearing,




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the appeals examiner noted for the record that Trigon had chosen

not to appear and made it known that Trigon had submitted a

letter stating that "the documentation we have previously

submitted fully states the company's position regarding Ms.

Snyder's past employment, and should give a complete picture of

our efforts and interactions with her."   When Snyder's attorney

was asked if there were any objections, he did not object to

proceeding in this manner, which allowed the appeals examiner to

consider the documentation previously submitted by Trigon.     The

purpose of the examiner introducing Trigon's letter was to put

the claimant on notice that Trigon was relying on documents

already in the VEC's files.   This action gave the claimant an

opportunity to review those documents and informed her that the

appeals examiner was going to consider those documents when

making his decision.   If the claimant had chosen to do so, she

could have inspected the file before or during the hearing,

stated her objection to any documents or statements therein, and

offered rebuttal evidence.
       We find that Snyder's right to a fair hearing was not

violated.   By not reviewing or inspecting the documents in the

record, Snyder chose not to exercise the options available to

her.    Klimko v. Virginia Employment Comm'n, 216 Va. 750, 763, 222

S.E.2d 559, 569-70 (1976).    To the extent that the "claimant did

not enjoy the right of confrontation and cross-examination or any

of the other rights available to [her] under the laws and




                                - 4 -
regulations, it was not because they were denied [her]; it was,

insofar as the record discloses, only because [she] did not

pursue them."   Id.   Moreover, the record indicates that Snyder's

attorney had the documents which she complains she had no

opportunity to review or rebut.   As the record shows, Snyder's

counsel's questions made reference to the forms that she

complains she did not know were part of the record:
          Q:   [O]n the . . . form that . . . Blue
               Cross that Miss Cardna filled out
               . . . apparently her impression was
               that the last time you, you were
               released . . . by your doctor to go
               back to work on October 10th
                 . . . .

To the extent that Snyder now objects to the appeals examiner

having proceeded without an employer's representative being

present, Snyder could have objected at the hearing or could have

subpoenaed a representative of her employer to appear.     See

Richardson v. Perales, 402 U.S. 389, 404 (1971) (holding that

claimant was precluded from complaining that he was denied the

rights of confrontation and cross-examination because he did not

take advantage of the opportunity to subpoena adverse witnesses

who had previously submitted reports); Baker, 11 Va. App. at
426-27, 399 S.E.2d at 634 (same).   She failed to do so and her

claim will not be considered for the first time on appeal.

     Snyder next contends that Trigon's evidence was hearsay and

as such, was insufficient to sustain Trigon's burden of proof.

Although the letters and the deputy's investigatory documents are




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hearsay, hearsay evidence is admissible in administrative

proceedings before the VEC.   Baker, 11 Va. App. at 425, 399

S.E.2d at 634.   Therefore, the VEC did not err in considering

this hearsay evidence.

     Snyder argues that hearsay evidence alone is not sufficient

to meet the employer's burden of proof.   Regardless of whether

hearsay alone is insufficient, in this instance sufficient

non-hearsay evidence was before the VEC to support its finding

that Snyder voluntarily quit her job without good cause.    Snyder

testified that she received a letter from Trigon dated

November 3, 1994 which stated, "unless you are able to return to

work or return the short-term disability forms to us by

November 10, 1994, we will have no alternative but to consider

this a voluntary resignation by you."   Further, she testified

that she did not send the forms to the Roanoke office, but

instead sent them to Richmond, and that, although she called, she

never spoke to anyone in Roanoke after receiving the November 3

letter.
     The appeals examiner asked Snyder directly about Trigon's

allegations.
          Q:     Well Miss Cardna had notified the
                 Commission that . . . they could
                 not get you to respond to . . .
                 them. They couldn't . . . make any
                 contact with you. Would you like
                 to respond to that?

          A:     Yes, sir, I did too. I didn't even
                 know that she was in charge, you
                 know. . . .



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The testimony of Snyder's sister corroborated Trigon's attempts

to get in touch with Snyder and have her fill out the short-term

disability forms.   Finally, the documents that were submitted

into evidence by Snyder also supported Trigon's claims.   This

non-hearsay evidence supported Trigon's assertions that the

claimant had voluntarily quit.

                                 II.

     Claimant also asserts that the evidence was insufficient to

support the VEC's finding that she voluntarily quit her job

without good cause.
     Code § 60.2-618 (1) states that:
          An individual shall be disqualified for
          benefits upon separation from the last
          employing unit . . . if the Commission finds
          such individual is unemployed because he left
          work voluntarily without good cause.


Determining whether an employee voluntarily quit without good

cause is a mixed question of law and fact reviewable on appeal.

Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 493,

452 S.E.2d 692, 693 (1995).
          When determining whether good cause existed
          for a claimant to voluntarily leave
          employment, the commission and the reviewing
          courts must first apply an objective standard
          to the reasonableness of the employment
          dispute and then to the reasonableness of the
          employee's efforts to resolve that dispute
          before leaving the employment. In making
          this two-part analysis, the claimant's claim
          must be viewed from the standpoint of a
          reasonable employee. . . . Factors that . . .
          are peculiar to the employee and her
          situation are factors which are appropriately
          considered as to whether good cause existed.



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Umbarger v. Virginia Employment Comm'n, 12 Va. App. 431, 435-36,

404 S.E.2d 380, 383 (1991) (citations omitted).

     The VEC did not err when it found that Snyder quit her

employment without good cause.    In Shuler v. Virginia Employment

Comm'n, 9 Va. App. 147, 151, 384 S.E.2d 122, 124 (1989), we

stated that "absence from work without authorization will

constitute a voluntary abandonment of a job if done with notice

that a discharge will result . . . ."    (Citations omitted).
     Here, Snyder had notice that if she did not return her

short-term disability forms to Trigon, she would be considered to

have resigned.   When Trigon proved that Snyder had notice that

her absence from work without authorization would constitute a

voluntary resignation, Snyder had the burden of going forward

with the evidence to prove that she provided Trigon the required

authorization.   Snyder acknowledges that she knew of Trigon's

policy requiring her to provide medical verification after five

days of medical leave that her continued absence was due to a

medical disability.   Furthermore, Snyder testified that she

received a letter from Trigon dated November 3, 1994 which

stated, "unless you are able to return to work or return the

short-term disability forms to us by November 10, 1994, we will

have no alternative but to consider this a voluntary resignation

by you."

     Although Snyder testified that she sent the short term

disability forms to Richmond rather than the Roanoke office,



                                 - 8 -
Trigon had no record of having received the forms.   The short

term disability form which she ultimately submitted was dated

December 5, 1994, which was after the date on which she was told

that her failure to file would be considered a voluntary

resignation and after she was told that Trigon considered that

she had resigned from her job.    Although the VEC made no finding

as to whether the claimant had previously filed a short term

disability form with Trigon at its Richmond office as Snyder

claimed, the form that she ultimately submitted indicated that

Dr. Wayne Fralin had seen her on November 29, 1994, which was

after the date on which she was to have submitted authorization

for her absence or be considered to have voluntarily resigned

from her job.    Snyder claimed to have previously faxed a copy of

a disability form, but she provided no other form other than that

of Dr. Fralin, to support her claim or to show that she had

timely filed the necessary proof.
     Because Snyder did not prove that she timely returned the

forms to Trigon and because no evidence was offered to show good

cause for not returning them, Trigon met its burden of proof and

the VEC was correct in finding that Snyder voluntarily quit her

job without good cause.

     In conclusion, the claimant received a fair hearing and the

evidence presented was sufficient to support the VEC's

determination.   Accordingly, we affirm the decision of the

circuit court.




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         Affirmed.




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