Prestera Center for Mental Health Services, Inc. v. Brianna M. Woodie

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                       FILED
PRESTERA CENTER FOR MENTAL HEALTH SERVICES, INC., December 27, 2023
Respondent Below, Petitioner                                                 EDYTHE NASH GAISER, CLERK
                                                                           INTERMEDIATE COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs.) No. 22-ICA-271        (Workforce Bd. of Review Case No. R-2022-1668)

BRIANNA M. WOODIE,
Claimant Below, Respondent

and

WORKFORCE WEST VIRGINIA,
Respondent Below, Respondent


                            MEMORANDUM DECISION

       Petitioner Prestera Center for Mental Health Service, Inc. (“Prestera”) appeals the
October 28, 2022, decision of the Workforce West Virginia Board of Review (“Board”),
affirming the August 24, 2022, decision of the Board’s administrative law judge (“ALJ”),
which found that respondent Brianna M. Woodie was eligible for unemployment
compensation benefits. 1 The issue on appeal is whether the Board erred by concluding that
Ms. Woodie had left her employment with good cause for health-related reasons.

       This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the Board’s determination that Ms.
Woodie was eligible for unemployment compensation benefits. Accordingly, a
memorandum decision reversing that decision is appropriate under the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure.

       Ms. Woodie was employed by Prestera as a therapist from September 23, 2019, to
March 25, 2021. Ms. Woodie’s last official day of work was November 21, 2020, as she
subsequently took twelve weeks of FMLA leave to recover from cancer-related surgery
and treatment. Ms. Woodie’s FMLA leave was exhausted on February 14, 2021, but Ms.
Woodie did not return to work. Following the exhaustion of her FMLA, by certified letter
dated March 18, 2021, Prestera informed Ms. Woodie that because her FMLA had been
exhausted, she would need to return to work by March 25, 2021. The letter further informed

      1
       Prestera is represented by Adam K. Strider, Esq. Ms. Woodie and neither the
Workforce West Virginia Commissioner, nor the Board, participated in this appeal.
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Ms. Woodie that if she did not return to work by the deadline, she would be classified as
inactive, but that she would be eligible for rehire. Based on testimony at the administrative
hearing, Prestera extended Ms. Woodie’s deadline to return to work from March 25, 2021,
to March 31, 2021. When Ms. Woodie did not return to work or provide Prestera with a
date on which she would return to work, Prestera deemed Ms. Woodie’s lack of response
to be a resignation or voluntary quit.

       Thereafter, Ms. Woodie filed for unemployment compensation benefits. According
to a Personnel Termination Notice form (“Termination Notice”) completed by Prestera’s
HR Department, the two reasons given for Ms. Woodie’s resignation were “on the advice
of physician” and “sickness.” A deputy’s decision dated July 13, 2022, found that Ms.
Woodie was ineligible for benefits because she failed to comply with the requirement of
West Virginia Code § 21A-6-3(1) (2020), which allows for benefits:

       [I]f the individual was compelled to leave his or her work for his or her own
       health-related reasons and notifies the employer prior to leaving the job or
       within two business days after leaving the job or as soon as practicable and
       presents written certification from a licensed physician within 30 days of
       leaving the job that his or her work aggravated, worsened, or will worsen the
       individual’s health problem.

        The deputy concluded that Ms. Woodie had left her employment for health reasons
and that she had complied with only a portion of the requirements under West Virginia
Code § 21A-6-3(1). Specifically, the deputy determined that Ms. Woodie had “notified the
employer prior to leaving the job or within two business days after leaving the job or as
soon as practicable that the job affected or would affect her health.” However, the deputy
further determined that Ms. Woodie failed to comply with the remaining language of the
statute because she had “not presented written documentation from a licensed physician
within thirty days of leaving the job advising that the work aggravated, worsened, or will
worsen her health.” Therefore, the deputy concluded Ms. Woodie had voluntarily quit her
job without good cause, and was ineligible for unemployment compensation beginning
March 21, 2021, and would remain ineligible until she returned to covered employment for
thirty working days. See W. Va. Code § 21A-6-3(1). Ms. Woodie appealed, and the matter
proceeded to a hearing before the Board’s ALJ. Notably, in her letter seeking to appeal the
deputy’s decisions, Ms. Woodie disputed the basis given on the Termination Notice stating,
in part:

       The reason that I am appealing this decision is due to the fact that I was never
       told that I was unable to work by the oncologist providing my care. The only
       form I ever received in regards to my health was FMLA paperwork, which
       stated that I could take leave intermittently.



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       An administrative hearing was held on August 22, 2022. The only two witnesses
were Ms. Woodie and Crystal Boggess, Prestera’s Human Resources Manager. Ms.
Woodie testified that her Prestera supervisor, Kate Luikart, had contacted her by phone on
March 25, 2021, inquiring whether she was able to return to work. Ms. Woodie indicated
that she could not return to work because she was still in active treatment at that time. She
further testified that Ms. Luikart did not tell her she was terminated, only that Prestera was
considering discharging her from employment. On that same day, and shortly after the
phone call, Ms. Woodie received an e-mail from her employer’s benefits specialist, Holly
Shivel. The e-mail informed Ms. Woodie that because she had told Ms. Luikart that she
was unable to return to work, pursuant to the terms of the March 18, 2021, certified letter,
her employment was terminated. The e-mail also stated that Ms. Woodie could reapply
with Prestera in the future. Ms. Woodie also testified that the only documentation she
provided to Prestera was the earlier FMLA paperwork that was signed by her physician
prior to Ms. Woodie going on FMLA leave. Ms. Woodie never reapplied to work for
Prestera.

       Ms. Boggess testified that Prestera considered Ms. Woodie’s failure to return to
work to be a voluntary quit or voluntary resignation once she had exhausted her FMLA
and passed her March 31, 2021, deadline to return to work. She further testified that Ms.
Woodie did not submit any further medical documentation to Prestera following the
exhaustion of her FMLA regarding her inability to return to work because of her health
condition.

       In its decision, the ALJ found that because Ms. Woodie voluntarily quit her
employment, the only pending issue was whether Ms. Woodie had proven that she had left
her employment with good cause due to health reasons pursuant to West Virginia Code §
21A-6-3(1). Ultimately, the ALJ concluded that Ms. Woodie had left Prestera with good
cause, related to health reasons, and, thus, found her eligible for unemployment
compensation. The ALJ reversed the deputy’s decision, and in support of its ruling, only
offered the following:

        [Ms. Woodie] did not return to work after November 21, 2020, due to her
       cancer treatments, namely chemotherapy. [Ms. Woodie] had surgery and
       chemotherapy to remedy her health condition and was taken off work by her
       doctor from November 2020 to May 2021. 2 Although it is true that [Ms.
       Woodie] did not return to work, the employer counts her absence as a

       2
         There is nothing in the designated record to corroborate the ALJ’s finding that Ms.
Woodie was off work by doctor’s order until May of 2021. This fact also appears
unsupported by Ms. Woodie’s own testimony that her physician approved her for
intermittent FMLA, permitting her to work as she was able. However, this discrepancy has
no bearing on our decision herein.

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       voluntary quit. The employer’s argument, [sic] it is clear that [Ms. Woodie]
       did not return to work solely based on her health condition. Moreover, the
       employer knew of the extreme nature of [Ms. Woodie]’s health issues as she
       was on FMLA, through its exhaustion, and was still unable to return to work.

       The employer herein should be congratulated for doing the right thing. That
       is to say, the employer continually paid the [Ms. Woodie]’s salary while out
       on FMLA, which is not mandated by either policy or law, and it clear that
       [Ms. Woodie] was appreciative. As the employer determined that [Ms.
       Woodie] had quit her employment due to her non-return from FMLA, based
       upon her continued health issues, she was unable to return to work and as
       such was deemed to have voluntarily quit her employment with good cause
       due to her own health conditions. The employer has no argument as to the
       lack of notice as it was the entity that facilitated her FMLA time off.

       The ALJ’s decision was entered on August 24, 2022. On October 28, 2022, the
Board entered its order, affirming the ALJ’s decision and adopting the ALJ’s findings of
fact and conclusions of law. This appeal followed. Our standard of review is as follows:

       The findings of fact of the Board of Review of [WorkForce West Virginia]
       are entitled to substantial deference unless a reviewing court believes the
       findings are clearly wrong. If the question on review is one purely of law, no
       deference is given and the standard of judicial review by the court is de novo.

Syl. Pt. 3, Adkins v. Gatson, 

, 

 (1994).

       Prestera’s only assignment of error is that the Board erred by concluding that Ms.
Woodie had complied with the physician certification requirements of West Virginia Code
§21A-6-3(1), and therefore, was eligible for unemployment benefits. Upon review, we
agree with Prestera. 3

       3
          As previously noted, neither Ms. Woodie, nor the Workforce West Virginia
Commissioner, nor the Board, participated in this appeal. We remind Workforce West
Virginia that both its commissioner and the Board are statutorily required to participate in
all appeals seeking judicial review of Board decisions. See W. Va. Code § 21A-7-17 (1967)
(stating, in part, that the commissioner “shall” be a necessary party to judicial reviews) and
W. Va. Code § 21A-7-20 (1936) (“The board shall be made a party to every judicial action
which involves its decisions. The board may be represented in such actions by an attorney
of the department or at the board’s request, by the attorney general.”) Further, to the extent
that none of the Workforce West Virginia respondents participated, we also remind the
parties that pursuant to the West Virginia Rules of Appellate Procedure, when a respondent
fails to participate, this Court has the discretion to find that said respondent agrees with
petitioner’s argument. See W. Va. R. App. P. 5(g)-(h) (incorporating the requirements of
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West Virginia Code § 21A-6-3(1) provides, in part:

       Further, for the purposes of this subdivision, an individual has not left his or
       her most recent work voluntarily without good cause involving fault on the
       part of the employer, if the individual was compelled to leave his or her work
       for his or her own health-related reasons and notifies the employer prior to
       leaving the job or within two business days after leaving the job or as soon
       as practicable and presents written certification from a licensed physician
       within 30 days of leaving the job that his or her work aggravated, worsened,
       or will worsen the individual’s health problem.

W. Va. Code § 21A-6-3(1).

       First, we find that the ALJ’s order as adopted by the Board, is clearly wrong in
finding that Ms. Woodie met the requirements for continued unemployment benefits
because of her health issues. To remain eligible for unemployment compensation benefits
after voluntarily leaving employment with good cause, the plain language of West Virginia
Code § 21A-6-3(1) clearly required Ms. Woodie to present written certification from a
licensed physician within thirty days of her separation from employment, and this
physician’s certification was required to state that Ms. Woodie’s work “aggravated,
worsened, or will worsen her medical condition.” Id. The record in this case is devoid of
any evidence to support the Board’s finding. In fact, by Ms. Woodie’s admission, the only
medical documentation she submitted to Prestera was the original FMLA paperwork, and
she made no effort to provide further documentation to Prestera upon notifying them that
she was not returning to work after she exhausted her FMLA. As such, the Board was
clearly wrong to award Ms. Woodie unemployment benefits based upon its finding that
Ms. Woodie had complied with the physician’s certification requirements of West Virginia
Code § 21A-6-3(1). See Workforce W. Va. v. Gaddy, No. 22-ICA-10, 

,
at *3-4 (W. Va. Ct. App. Sept. 5, 2023) (finding claimant ineligible for unemployment
benefits based on failure to comply with physician’s certification requirements of West
Virginia Code § 21A-6-3(1)).

       Instead, we find that the record demonstrates that Ms. Woodie left work voluntarily
without fault on the part of her employer and cited her ongoing medical treatment as the
reason for her separation from work. Despite leaving her employment for health-related

Rule 10 of our Appellate Rules into administrative appeals); W. Va. R. App. P. 10(d) (“If
the respondent's brief fails to respond . . . the [Court] will assume that the respondent agrees
with the petitioner's view of the issue.”). While we decline to impose that finding upon the
nonparticipating parties in this case, that does not foreclose our ability to impose this
negative inference in future cases where none of the Workforce West Virginia respondents
participate and represent Workforce West Virginia.

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reasons, Ms. Woodie did not provide a physician’s certification within thirty days as
required by statute. Because Ms. Woodie failed to comply with the requirements of West
Virginia Code § 21A-6-3(1), we find that she did not meet her burden of proof. Therefore,
we conclude that Ms. Woodie was ineligible for unemployment compensation benefits as
a matter of law.

      Accordingly, we reverse the Board’s October 28, 2022, decision.

                                                                           Reversed.
ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen




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