Charles J. Nelson, Petitioner,
v.
Respondents.
No. 91CA1145
Div. III.
January 16, 1992.
William E. Benjamin, Boulder, for Petitioner.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy
Attorney General, Timothy M. Tymkovich, Solicitor General, Evelyn
Bachrach Makovsky, Assistant Attorney General, for Respondents
Industrial Claim Appeals Office and Colorado Division of Employment and
Training.
No Appearance for Respondent Continental Mechanical System, Inc.
CRISWELL, Judge.
Charles J. Nelson, claimant, seeks review of a final order of the
Industrial Claim Appeals Panel which disqualified him from the receipt
of unemployment compensation benefits. We affirm.
The question presented is whether claimant's employment termination
occurred under the circumstances described in §
8-73-108(4)(b)(I), C.R.S. (1991 Cum. Supp.). That statute provides for
an award of unemployment compensation benefits if "the health of the
worker, his spouse, or dependent child is such that the worker must
leave the vicinity of his employment. . . ." (emphasis supplied)
In contrast to this provision, §
8-73-108(5)(e)(IV), C.R.S. (1991 Cum. Supp.) requires a denial of
benefits if the employee quits his employment "to move to another area
as a matter of personal preference or to maintain contiguity with
another person or persons, unless such move was for health reasons. . .
."
Here, both claimant and wife were employed. Both also suffered health
problems. Through the wife's employment, however, both were enrolled in
a health insurance program that paid a substantial portion of the
medical expenses necessitated by these problems.
The wife's employer required her to transfer to California in order
to continue her employment. After discussing the matter, claimant and
his wife jointly decided that she should accept this transfer so that
both of them would continue to receive the health insurance benefits
that they had previously enjoyed. Claimant therefore quit his job to
accompany his wife to California.
It is undisputed that nothing in the "vicinity" of either claimant's
or his wife's employment contributed to or aggravated the health
problems of either. Likewise, no contention is made that the medical
care available in that area is in any manner inadequate to treat their
condition or that the care that either he or his wife will receive in
California will be significantly superior to that available here.
Based on these undisputed facts, the Panel held that
§ 8-73-108(4)(b)(I) did not apply and that,
because the health problems of claimant and his wife did not require
their move to California, claimant's move was a matter of "personal
preference" under § 8-73-108(5)(e)(IV). As a
result, claimant's application for unemployment benefits was denied.
Claimant argues that the Panel erred in reaching this conclusion. He
asserts that, while medical treatment was theoretically available in
Colorado, if wife's employment had been terminated, with the consequent
loss of the health insurance benefits he and his wife received as a
result of that employment, they would not have been able to pay for such
treatment. Thus, he maintains that it was their health problems which
required their move to California. We disagree.
The statute requires that it be the "health" of the worker that
requires him or her to "leave the vicinity of his [or her] employment."
Thus, the statute contemplates that the worker's health problems be
work-related, see Public Service Co. v. Ingle, 794 P.2d 1374
(Colo. App. 1990), or caused or aggravated by the climatic or other
conditions in or near the location where the worker is employed.
Alternatively, as the ALJ concluded, the absence of appropriate,
on-going medical treatment for a health problem within a reasonable
distance from the site of employment might also fall within the
contemplation of the statute.
Here, however, neither circumstance exists. Rather, it is claimant's
alleged financial condition, not his health, that was the direct motive
for his decision to move to California. Thus, we agree with the Panel
that § 8-73-108(5)(e)(IV) required that his
claim for benefits be denied.
Order affirmed.
Judge Metzger and Judge Ney concur.
