                                             Tuesday        28th

          May, 2002.


Physical Therapy Works, Inc.,                               Appellant,

against      Record No. 2777-00-1
             Circuit Court No. CH99-463

Virginia Employment Commission and
 Carla A. Kinsman,                                          Appellees.


                       Upon a Rehearing En Banc

 Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray,
     Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee


             Randolph A. Raines, Jr. (Ferguson, Rawls,
             MacDonald & Overton, on brief), for
             appellant.

             Lisa J. Rowley, Assistant Attorney General
             (Randolph A. Beales, Attorney General;
             Richard B. Zorn, Senior Assistant Attorney
             General; John B. Purcell, Jr., Assistant
             Attorney General, on brief), for appellee
             Virginia Employment Commission.

             No brief or argument for appellee Carla A.
             Kinsman.


          By memorandum opinion, a divided panel of this Court

affirmed the judgment of the trial court.   We subsequently granted a

rehearing en banc upon such appeal and stayed the mandate of the

panel decision.

          Upon rehearing en banc, it is ordered that the October 16,

2001 mandate is vacated, and we reverse the judgment of the trial

court for the reasons set forth in the panel dissent.
          Judges Benton, Elder, Annunziata, Frank and Humphreys

dissent for the reasons set forth in the majority opinion of the

panel.

          This order shall be certified to the trial court.


                          A Copy,

                               Teste:

                                         Cynthia L. McCoy, Clerk

                               By:

                                         Deputy Clerk




                                 -2 -
                                             Tuesday        20th

           November, 2001.


Physical Therapy Works, Inc.,                               Appellant,

against      Record No. 2777-00-1
             Circuit Court No. CH99-463

Virginia Employment Commission and
 Carla A. Kinsman,                                          Appellees.


                 Upon a Petition for Rehearing En Banc

                         Before the Full Court


           On October 25, 2001 came the appellant, by counsel, and

filed a petition praying that the Court set aside the judgment

rendered herein on October 16, 2001, and grant a rehearing en banc

thereof.

           On consideration whereof, the petition for rehearing en

banc is granted, the mandate entered herein on October 16, 2001 is

stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

           The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening brief

upon rehearing en banc a copy of the opinion previously rendered by

the Court in this matter. It is further ordered that the




                                  -3 -
appellant shall file with the clerk of this Court twelve additional

copies of the appendix previously filed in this case.


                          A Copy,

                               Teste:

                                         Cynthia L. McCoy, Clerk

                               By:

                                         Deputy Clerk




                                 -4 -
                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


PHYSICAL THERAPY WORKS, INC.
                                           MEMORANDUM OPINION * BY
v.       Record No. 2777-00-1            JUDGE ROBERT J. HUMPHREYS
                                              OCTOBER 16, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
 CARLA A. KINSMAN


            FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                        Rodham T. Delk, Jr., Judge

            Randolph A. Raines, Jr. (Ferguson, Rawls, MacDonald
            & Overton, on brief), for appellant.

            Lisa J. Rowley, Assistant Attorney General (Mark L.
            Earley, Attorney General, on brief), for appellee
            Virginia Employment Commission.

            No brief or argument for appellee Carla A.
            Kinsman.


     Physical Therapy Works, Inc. (PTW) appeals a decision of the

circuit court which, in turn, upheld a decision of the Virginia

Employment Commission (Commission) awarding Carla A. Kinsman

unemployment benefits.    PTW contends that Kinsman voluntarily reduced

her employment without good cause and is therefore barred from

receiving unemployment benefits.     For the reasons that follow, we

affirm the decision of the circuit court and the Commission.

     "Initially, we note that in any judicial proceedings 'the

findings of the commission as to the facts, if supported by evidence


     *
       Pursuant to Code § 17.1-413, this opinion is not designated for
publication.
                                 -5 -
and in the absence of fraud, shall be conclusive, and the

jurisdiction of the court shall be confined to questions of law.'"

Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d

207, 209 (1988) (quoting Code § 60.2-625(A)).

"In accord with our usual standard of review, we 'consider the

evidence in the light most favorable to the finding by the

Commission.'"     Wells Fargo Alarm Svcs. v. Va. Empl. Comm'n, 24

Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (quoting Virginia

Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App.

621, 626, 359 S.E.2d 552, 554 (1987).

     PTW has not alleged an issue of fraud with regard to the facts

of this matter.    Furthermore, we find the facts as found by the

Commission and adopted by the circuit court to be supported by the

record.

     Kinsman had been a home healthcare employee for PTW from July 6,

1996 through June 22, 1999.    In her original employment capacity with

PTW, Kinsman worked twelve months per year, on a full-time basis,

providing care to older patients in their homes.

     By the end of 1998, Kinsman determined that working full-time

was too much for her and wanted to spend more time at home with her

children.   Kinsman became aware that there were other employees with

PTW who were working on a ten-month per year basis, working with

school age children during the time that the public schools were in

session.    PTW informed Kinsman that such a position was available to

her, and Kinsman took the new position in January of 1999.    At that

                                    -6 -
time, PTW removed her home health care clients and assigned them to

other employees.

     In her new position, Kinsman was given the option of being paid

on a ten-month or twelve-month basis.   She initially elected to be

paid on the twelve-month basis, but soon found the portion of wages

that would have to be withheld from her paycheck to allow her to

receive pay during the summer months was more than she could afford.

Accordingly, Kinsman requested to return to her previous position.

After being told by PTW that this would not be possible, she

requested and was granted a ten-month pay schedule, which would allow

her to receive the same amount of money each month (with the

exception of the summer months) that she had earned in her previous

twelve-month position.

     On June 22, 1999, Kinsman's work ended with the school year.

Kinsman was aware at that time that PTW might have some available

part-time work and she requested it; however, PTW informed Kinsman

that there was no part-time work available.   It was at that time that

Kinsman filed her claim for unemployment benefits.

     Kinsman was found eligible and qualified for benefits pursuant

to the initial decision of the deputy commissioner.   PTW appealed

claiming that although Kinsman was eligible for benefits under the

Unemployment Compensation Act, she was not qualified to receive

benefits pursuant to Code § 60.2-618(1).   The appeals examiner found

that Kinsman had neither separated from work voluntarily, nor

separated from work due to misconduct, and that she was therefore

                                 -7 -
qualified to receive benefits according to the statute at issue.    The

full Commission affirmed the decision of the appeals examiner.

     PTW then appealed the Commission's decision to circuit court

pursuant to Code § 60.2-625.   After receiving further memoranda and

oral argument by counsel, the court affirmed the Commission's

decision, finding that PTW had failed to overcome its burden to

demonstrate that Kinsman had voluntarily separated from employment

and that Kinsman was thus qualified to receive benefits under Code

§ 60.2-618(1).

     Code § 60.2-618 provides, in relevant part:

          An individual shall be disqualified for benefits
          upon separation from the last employing unit for
          whom he has worked thirty days or 240 hours or
          from any subsequent employing unit:
          1. For any week benefits are claimed until he
          has performed services for an employer (i) during
          thirty days, whether or not such days are
          consecutive, or (ii) for 240 hours, and
          subsequently becomes totally or partially
          separated from such employment, if the Commission
          finds such individual is unemployed because he
          left work voluntarily without good cause.


     This statutory scheme for determining a claimant's qualification

for benefits contemplates a shifting of the burden of proof between

the claimant and the employer.   See Actuarial Benefits & Design Corp.

v. VEC, 23 Va. App. 640, 644-45, 478 S.E.2d 735, 737-38 (1996).

          The claimant has the burden of proving he or she
          has met the eligibility conditions of Code
          § 60.2-612. Once a claimant has met this burden,
          the burden shifts to the employer to prove that
          the claimant is disqualified. Under Code
          § 60.2-618(1), a claimant is disqualified if "he
          left work voluntarily without good cause." The
          burden is on the employer to prove that the
                                 -8 -
          claimant left work voluntarily. If the employer
          proves that the claimant's separation was
          voluntary, the burden shifts again to the
          claimant to prove that he or she left employment
          for good cause. Thus, the issue of a claimant's
          cause for leaving arises only if the employer
          proves that the claimant left his or her job
          voluntarily.
Id. (citations omitted).

     "Determining whether an employee voluntarily quit without good

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

Snyder v. Virginia Employment Commission, 23 Va. App. 484, 491, 477

S.E.2d 785, 788 (1996).   However, as there has never been a

determination of "good cause," PTW challenges only the factual

determination of whether Kinsman voluntarily separated from

employment in January of 1999.   We cannot say, based upon our review

of the record, that the evidence as a whole would lead us to the

conclusion that Kinsman voluntarily caused the separation in

employment sufficient to create the need for unemployment benefits.

Indeed, Kinsman continued to work for PTW for 30 to 40 hours per week

until June of 1999, when the school year ended.   When that time came,

Kinsman was under the impression that part-time work would be

available to her and she requested such work, but was told by PTW

that part-time work was unavailable.

     It was not until that time that Kinsman became at least

partially separated from employment and eligible for unemployment

benefits.   Accordingly, as the factual determination of the

Commission is supported by evidence in the record, it is conclusive.

Further, we agree with the trial court's determination that PTW

                                  -9 -
failed to establish that a meeting of the minds existed between PTW

and Kinsman as to Kinsman's status and, thus, that PTW failed to

overcome its burden to prove that Kinsman voluntarily separated from

her employment.   Therefore, the decision of the trial court,

affirming the Commission determination, is affirmed.

                                                   Affirmed.




                                 - 10 -
Bray, J., dissenting.

     Because, in my view, the disputed award is inconsistent with the

intent of the Unemployment Compensation Act (the Act), I respectfully

dissent.

     "The purpose of the Act is to provide temporary financial

assistance to [employees] who become unemployed through no fault of

their own."   Unemployment Compensation Comm'n v. Tomko, 192 Va. 463,

469, 65 S.E.2d 524, 528 (1951).   Thus, Code § 60.2-618(1) provides

that "[a]n individual shall be disqualified for benefits . . . :    (1)

. . . if the Commission finds such individual is unemployed because

he left work voluntarily without good cause."    Id.

     "Determining whether an employee voluntarily quit without good

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

Snyder v. Virginia Employment Comm'n, 23 Va. App. 484, 491, 477

S.E.2d 785, 788 (1996).   "The term 'voluntary' connotes

'"[u]nconstrained by interference; spontaneous; acting of oneself

. . . [r]esulting from free choice."'"     Shuler v. Employment Comm'n,

9 Va. App. 147, 150-51, 384 S.E.2d 122, 124 (1989) (quoting Barnes v.

Singer Co., 376 S.E.2d 756, 758 (N.C. 1989) (quoting Black's Law

Dictionary 1413 (5th ed. 1979))).

     Here, in accordance with the factual findings of the appeals

examiner, "[Kinsman] approached the employer representative about

changing her schedule from full-time to a modified schedule . . .

because of the stress she felt with working with home health care

clients and her desire to spend more time with her children."    The

                                  - 11 -
employer acceded to the request, assigning Kinsman to a task that

permitted her to "have off . . . all school holidays, including the

summer break," and reduced her compensation accordingly.

     Clearly, therefore, Kinsman sought a reduction in compensable

employment from twelve months to ten.     The employer obliged.   Thus,

Kinsman voluntarily rendered herself unemployed for two months

annually, conduct which precludes unemployment compensation benefits

from her employer.   See Code § 60.2-618(1).

     Accordingly, I respectfully dissent.




                                 - 12 -
