Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                        Mar 13 2014, 10:03 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

GEORGE T. BONIN                                 GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                KRISTIN GARN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GEORGE T. BONIN,                                )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 93A02-1304-EX-376
                                                )
REVIEW BOARD OF THE                             )
INDIANA DEPARTMENT OF                           )
WORKFORCE DEVELOPMENT,                          )
                                                )
       Appellee-Respondent.                     )


                     APPEAL FROM THE REVIEW BOARD OF THE
                    DEPARTMENT OF WORKFORCE DEVELOPMENT
                             Steven F. Bier, Chairperson
                               Cause No. 13-R-00821



                                      March 13, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge

       Appellant-petitioner George Bonin appeals appellee-respondent Review Board of

the Indiana Department of Workforce Development’s (Review Board) decision to deny

him unemployment. More particularly, Bonin argues that he left his employment with

Ryder Integrated Logistics (Ryder) when his night shift schedule caused him fatigue and

he was concerned for the safety of others; Bonin maintains that, under these

circumstances, he should receive unemployment benefits. We conclude that the Review

Board was correct in determining that Bonin left employment without good cause as

defined in Indiana Code section 22-4-15-1. Therefore, we affirm the Review Board’s

determination that Bonin was ineligible for unemployment benefits.

                                            FACTS

       Bonin began working for Ryder on August 27, 2012. He accepted full-time

employment with Ryder as a truck driver with the understanding that his shift would

begin between 10:00 p.m. and midnight and end between 10:00 a.m. and noon. Bonin

was employed by Ryder until September 11, 2012, when he severed the employment

relationship. Bonin told his supervisor that he could not sleep in the afternoons and that

he did not feel safe driving the night shift.

       On November 8, 2012, a claims deputy from the Department of Workforce

Development determined that Bonin was eligible for unemployment benefits because he

was involuntarily employed due to a physical disability. The deputy further determined


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that Bonin had made reasonable efforts to maintain his job because the “medical

condition was verified to the employer.” Appellee’s App. p. 2. On November 19, 2012,

Ryder filed an appeal from the determination of eligibility, and, on February 18, 2013, an

Administrative Law Judge (ALJ) held a hearing on Bonin’s unemployment claim. At the

hearing, Bonin testified that he quit working for Ryder because he was unable to adjust

his sleeping habits to the night shift and felt unsafe driving at night. He also testified that

he had called his doctor and spoken with him over the phone about possible solutions to

his inability to sleep. His doctor suggested over-the-counter sleep aids and offered to

discuss prescription sleep aids, but Bonin did not make an appointment.

       The ALJ issued findings of fact and conclusions of law. The ALJ found as fact

that 1) Bonin had known that he would be driving at nighttime when he accepted

employment with Ryder; 2) Bonin had consulted his physician by phone and expressed

concern over the safety of driving at night while deprived of sleep, but he had not met

with his physician to further explore his options; and 3) Bonin had voluntarily left

employment. The ALJ also made several conclusions of law including 1) Bonin was not

diagnosed with a medical condition and did not have a medically substantiated disability;

2) Bonin did not show that a reasonably prudent person would terminate employment

under the same or similar working conditions when he took a position understanding that

he would work over night and worked only ten days; and 3) Bonin voluntarily left

employment without good cause in connection with work.



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      Bonin filed an appeal with the Review Board. On March 13, 2013, the Review

Board issued its determination affirming the decision of the ALJ. Bonin now appeals.

                            DISCUSSION AND DECISION

                                 I. Standard of Review

      We initially observe that the Unemployment Compensation Act provides that

“[a]ny decision of the review board shall be conclusive and binding as to all questions of

fact.” McClain v. Rev. Bd. of the Ind. Dept of Workforce Dev., 693 N.E.2d 1314, 1316

(Ind. 1998). Moreover,

      Indiana Code § 22-4-17-12(f) provides that when the Board’s decision is
      challenged as contrary to law, the reviewing court 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.”
      Under this standard courts are called upon to 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. at 1317.

      Under our standard of review, we neither reweigh the evidence nor assess the

credibility of witnesses and consider only the evidence most favorable to the Review

Board’s findings. Id. We will reverse the decision “only if there is no substantial

evidence to support the findings.” Id.

      Questions of ultimate facts are essentially “mixed questions of law and fact.” Id.

at 1318. The ultimate facts are typically reviewed to ensure that the Review Board’s

inference is reasonable.    Some questions of ultimate fact are within the special

competence of the Review Board.          In such cases, a court should “exercise greater

                                             4
deference to the reasonableness of the Board’s conclusion.” Id. The Review Board’s

deduction requires reversal if the underlying facts are not supported by substantial

evidence or the logic of the inference is faulty, even where the agency acts within its

expertise, or if the agency proceeds under an incorrect view of the law. Id.

                                    II. Bonin’s Claims

       Bonin states that he was unable to continue working for Ryder because he had

difficulty adjusting his sleeping habits to the night shift. He maintains that he could not

operate his truck in a manner he felt was safe when dealing with fatigue.

       At the outset, we note that Bonin has failed to make any claim that might entitle

him to a reversal of the Review Board’s determination that he is ineligible for

unemployment benefits. He does not argue that he had good cause for leaving or that a

reasonably prudent person in his circumstances would have felt compelled to leave

employment. Thus, we agree with the Review Board that these issues have been waived.

       Waiver notwithstanding, Bonin’s argument fails on the merits. An employee who

voluntarily leaves his employment must have “good cause in connection with the work”

in order to avoid becoming disqualified from receiving unemployment benefits. Ind.

Code. § 22-4-15-1(a). For a claimant to show good cause, he or she must demonstrate

that a reasonably prudent person in the same circumstances would be compelled to leave

employment. Indianapolis Osteopathic Hosp., Inc. v. Jones, 669 N.E.2d 431, 433 (Ind.

Ct. App. 1996).       If a claimant lacks good cause for severing the employment



                                             5
relationship, he or she is disqualified from receiving unemployment benefits under

Indiana Code section 22-4-15-1(a).

       As discussed above, Bonin claims that he cannot adjust to sleeping in the

afternoon and that the fatigue resulting from a lack of sleep makes it difficult and unsafe

for him to drive during the night shift. While Bonin called his doctor to seek advice, he

neither attempted to take the over-the-counter sleep aids his doctor suggested, nor did he

schedule an appointment with his doctor to discuss prescription sleep aids. Appellant’s

App. p. 6-8. Bonin gave no reason for this decision, other than his aversion to sleep aids.

Id. Under these circumstance, we will not say that driving the night shift alone is enough

to cause a reasonably prudent person to end his employment. In that case, no truck driver

would work at night. Consequently, we conclude that Bonin did not have good cause to

end his employment.

       The decision of the Review Board is affirmed.

NAJAM, J., concurs, and CRONE, J., concurs in result.




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