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Mosley v Advantage Health 11.05

Section 29(5)

LEAVING TO ACCEPT, Performs services, Pre-employment physical, Stipulation of facts

CITE AS: Mosley v Advantage Health, Kent Circuit Court, No. 03-05557-AE (November 13, 2003)

Appeal pending: No

Claimant: Eva M. Mosley
Employers: Advantage Health, Spectrum Health
Docket No. B2002-10112-RO3-167380

CIRCUIT COURT HOLDING: In order for Section 29(5) to apply, the claimant must perform services for the new employer for which compensation is due.

FACTS: Claimant worked as a medical biller for Advantage Health until May 15, 2002 when she quit to work for Spectrum Health. Spectrum Health required her to undergo a physical exam and drug screen before beginning employment. On May 17, 2002 Spectrum Health withdrew its offer of employment. Claimant filed for unemployment benefits. At a July 31, 2002 Referee hearing, the parties entered into a stipulation that the physical exam and drug screen constituted performance of services. The Referee found the stipulation binding and held claimant not disqualified under Section 29(1)(a) by question of the leaving to accept provision of Section 29(5). The Board of Review reversed.

DECISION: Claimant is disqualified because she did not perform compensable services for Spectrum Health.

RATIONALE: For Section 29(5) to apply, the claimant must have left work to accept permanent full-time work with another employer and perform[ed] services for that employer. A stipulation that certain facts warranted the application of Section 29(5) to the claimant’s separation from the involved employer, when such facts clearly did not support such application, is void. The phrase “performs services for the employer” plainly and obviously means services for which compensation is payable. Claimant never performed any compensable services for Spectrum Health before the offer of employment was withdrawn. Pre-employment physical examinations and drug screens may preclude employment, which is why they are done before employment begins.

(Note: Also see Board Rule 317 regarding stipulations.)


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