KULIK,
APPELLANT,
vs.
BOARD OF
REVIEW, OHIO BUREAU OF
EMPLOYMENT SERVICES, ET
AL., APPELLEES
No. 47289
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
471 N.E.2d 188, 14 Ohio App. 3d 302, 14 Ohio B. Rep. 359
May 21, 1984, Decided
HEADNOTE
Unemployment compensation -- Eligibility for benefits --
Employee quits work with "just cause," when -- Materials on jobsite
detrimental to health.
SYLLABUS
An employee who quits work because his health is threatened due to
materials on the jobsite to which he is allergic quits with "just
cause." (R.C. 4141.29[D][2][a], construed.)
COUNSEL
Mr. Thomas W. Weeks, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney
general, and Mr. Q. Albert Corsi, for
appellees.
JUDGES
DAY, C.J. NAHRA and PATTON, JJ., concur.
AUTHOR: DAY
OPINION
{*302} Claimant-appellant, Scott R. Kulik (claimant),
appeals the decision of the court of common pleas which affirmed
the board of review's denial of his claim for unemployment
compensation. The judgment is reversed.
Claimant was employed for Component Systems, Inc., from July 9,
1979 to March 11, 1981. Kulik had been employed as an "assembler"
until the last three to four months of his employment during which
time he worked as a "mill man." On September 2, 1980, while
employed as an assembler, he visited his allergist, Dr. Karosi. He
was under the physician's care from September 2, 1980 to March 13,
1981. The board in its decision stated that:
"Throughout claimant's employment with Component Systems, Inc.,
claimant had experienced respiratory problems which were due to
allergic reactions to various elements, some of which were found at
work. In December, 1980, claimant underwent a series of tests under
the supervision of Dr. Korosi, M.D. for allergy tests. On or
{*303} about December 18, 1980, these tests were returned
to Dr. Korosi. At that time Dr. Korosi advised claimant that due to
the fact that some of the elements he was allergic to were
encountered at work, claimant should quit employment with Component
Systems, Inc. Because of financial reasons, claimant did not take
Dr. Korosi's advice at that time and did not inform his employer of
Dr. Korosi's recommendations."
The doctor had also advised claimant that he should stay away
from glue, and stay away as much as possible from gypsum powder.
Attempts to avoid contact with these substances by allowing Kulik
to do mill work were to no avail. Despite the absence of any
improvement in his medical condition following the change in his
working location, claimant remained on the job. The board further
stated:
"On March 1, 1981, Dr. Korosi again advised claimant to quit
employment. Claimant did not advise his employer of this
recommendation either and continued to work through March 4,
1981."
On March 4, 1981, claimant was involved in an argument with his
supervisor and walked off his job. He was suspended indefinitely
pending an investigation but the union successfully interceded on
his behalf. On March 11, 1981, claimant returned to work and
notified Mr. Friedman, the Assistant Secretary-Comptroller of
Component Systems, that he was terminating his employment upon the
advice of his doctor.
On April 23, 1981, claimant applied for unemployment
compensation benefits. The Administrator of the Ohio Bureau of
Employment Services (O.B.E.S.) allowed the claim. The employer
requested reconsideration. The administrator affirmed the decision.
The employer appealed to the Board of Review of O.B.E.S.
On July 29, 1981, claimant and Friedman testified in a board
hearing conducted by a referee. There, the administrator's decision
was affirmed. The employer applied to the board to institute
further appeal; the appeal was granted. Hearing was held before
another referee on July 1, 1982. On September 30, 1982, the board
issued its decision reversing all previous determinations and found
that claimant had quit work without just cause and was not entitled
to receive unemployment compensation benefits pursuant to R.C.
4141.29(D)(2)(a). Pursuant to R.C. 4141.28(O), claimant appealed to
the court of common pleas. That court reaffirmed the board without
a written opinion. Claimant appeals to this court. He assigns one
error:
"The Court of Common Pleas erred in affirming the Board of
Review which reversed a decision of the Ohio Bureau of Employment
Services granting unemployment compensation benefits to appellant
Scott R. Kulik; the Board's decision was unlawful, unreasonable,
and against the manifest weight of the evidence in that Mr. Kulik
quit his job for 'just cause' under O.R.C. § 4141.28(D)(2)(a) [
sic ]."
II
It is well-settled that the determination "of purely factual
questions is primarily within the province of the referee and the
board of review" and a reviewing court does not make its own
determination of the weight of the evidence.
Brown-Brockmeyer Co. v. . Roach
(1947), 148 Ohio St. 511, 518 [36 O.O. 167]. However, R.C.
4141.28(O) provides that the reviewing court must determine whether
the decision of the board of review is "unlawful, unreasonable or
against the manifest weight of the evidence."
An employee who quits work because his health is threatened due
to materials on the jobsite to which he is allergic quits with just
cause. Doersam {*304} v. OBES (App.
1977), Unempl. Ins. Rep. (CCH), Ohio Rules and Decisions 1971-1979,
Paragraph 9102, at 38,947.
In Doersam the claimant had commenced
employment as a Corvette body repairman on September 1, 1974. He
began to suffer from bronchial asthmatic attacks and consulted a
physician in June 1975, who advised the claimant:
"[T]o quit his employment because of the fiberglass dust he had
been exposed to and to find employment in an area where claimant
would not be exposed to air pollution such as dust and fumes.
Rather than quitting immediately, after discussing the matter with
his employer, claimant attempted to continue work but in a
different location in the employer's shop. Claimant, however, did
not return to work after August 28, 1975." Id.
In resolving the issue of whether or not the claimant had quit
with just cause the court concluded:
"A person who is advised by his doctor to quit his employment
because the working conditions are injurious to his health has just
cause to quit his employment. As indicated above, a person having
such just cause for quitting his employment should not be penalized
for attempting to continue the employment under slightly different
conditions but in a place where the basic problem involved, dust
and fumes, is the same." Id. at 38,949.
It has been noted that on March 1, 1981, Dr. Korosi advised on a
second occasion that claimant terminate his employment with
Component Systems. On March 11, 1981, the first day Kulik was
allowed to return to work following the altercation with his
supervisor, claimant informed his employer he was quitting due to
his allergies. The "quit" was reasonable under all the
circumstances. These included medical advice and attempts to adjust
the employment environment. Claimant's financial need to stay on
the job despite a health threatening situation is not a rebutting
factor. Claimant's "quit" for reasons of health did not disqualify
him.
The assignment of error is well-taken.
III
The court of common pleas' decision is reversed and the cause
remanded for further proceedings in accordance with this
opinion.
Judgment reversed and cause remanded.
DISPOSITION
Judgment reversed and cause
remanded.