                                          No. 02-295

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 267


DARREN RICE,

              Plaintiff and Respondent,

         v.

STATE OF MONTANA,
Department of Labor and Industry,
Unemployment Insurance Division,

              Respondent and Appellant.



APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and for the County of Lincoln,
                     The Honorable Michael C. Prezeau, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Charles K. Hail, Montana Department of Labor & Industry, Helena, Montana

              For Respondent:

                     ( No Respondent’s Brief Filed )


                                                         Submitted on Briefs: August 8, 2002

                                                                Decided: November 26, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1      The Respondent, Darren Rice, appealed the Montana Board of

Labor and Appeals’ October 11, 2001, decision which denied him

unemployment benefits to the District Court for the Nineteenth

Judicial District in Lincoln County.                  The District Court reversed

the   Board     of   Labor     and    Appeals’       decision     and   awarded   Rice

retroactive unemployment benefits.                   The State of Montana appeals

the District Court’s decision.             We affirm the Order of the District

Court.

¶2      The sole issue on appeal is whether § 39-51-2302, MCA, barred

Rice’s claim for unemployment benefits as a matter of law.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶3      The facts in this case are undisputed.                    Rice was diagnosed

with, and began treatment for, bi-polar disorder on September 21,

1998.    On October 14, 1999, he was hired by Interstate Transfer and

Storage (Interstate Transfer), as a full time long haul truck

driver.     As a long haul truck driver, Rice was required to travel

long distances and remain on the road for extended periods of time.
 When he was hired, his bi-polar condition was being successfully

treated     through     medication      and     he    was   fully   qualified     as   a

commercial truck driver pursuant to state and federal regulations.

¶4      On or around June 8, 2001, Rice suffered from a blackout while

visiting his home in Libby, Montana.                   Following the blackout, he

sought medical advice about his condition at the Libby Prompt Care

walk-in clinic.        After consulting with an emergency room doctor, a

Licensed Practitioner Nurse (LPN) authorized Rice to take four days


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off work, advised him to refrain from driving, and advised him to

seek further assistance from his regular doctor, Dr. Gregory

Winter.    Rice informed Interstate Transfer that he would not be

returning to work as scheduled and that he would contact them when

he had more information concerning his condition.        He was unable to

immediately contact Dr. Winter at the Fort Harris VA hospital.

However, the two VA counselors he talked to concurred with the

LPN’s opinion that he should not return to work as a trucker.

¶5   Based on the advice he received from the LPN and the two VA

counselors, on June 12, 2001, Rice notified Interstate Transport

that he would not be returning to work.       At that same time he filed

a claim for unemployment benefits retroactive to June 10, 2001.           On

June 22, 2001, Dr. Winter concluded that Rice should not drive a

motor vehicle and completed the necessary Department of Labor and

Industry (Department) form to document that opinion.
¶6   The Department conducted a hearing on August 13, 2001, and

issued its decision to deny benefits on August 17, 2001.                The

Department held that Rice was not qualified to receive benefits

because he had not received the advice of a licenced practicing

physician before resigning from his employment on June 12.              Rice

appealed the Department’s decision           to the Board of Labor and

Appeals (Board) which held an additional hearing on September 7,

2001.     The   Board   affirmed   the   Department’s   decision   to   deny

benefits on September 11, 2001.

¶7   Rice appealed the Board’s decision in the Nineteenth Judicial

District Court pursuant to § 39-51-2410, MCA.       The District Court’s



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review was limited to issues of law pursuant to § 39-51-2410(5),

MCA.    It concluded that the Department and the Board misinterpreted

§    39-51-2302,      MCA,     and    that    Rice     qualified       for    unemployment

benefits because he demonstrated that he left work for “good

cause.”      The State appeals the District Court’s conclusions of law.

                                        DISCUSSION

¶8     Does § 39-51-2302, MCA, bar Rice’s claim for unemployment

benefits?

¶9     Interpretation and construction of a statute is a matter of

law which we review to determine whether the district court’s

conclusions are correct.              State v. Price, 2002 MT 150, ¶ 15, 310

Mont. 320, ¶ 15, 50 P.3d 530, ¶ 15 (citation omitted). Construction of

a statute requires this Court “simply to ascertain and declare what is in the terms or substance

contained therein, not to insert what has been omitted or omit what has been inserted.”

Section 1-2-101, MCA.

¶10    The State contends that the District Court’s interpretation of

§ 39-51-2302, MCA, is incorrect and that Rice is not eligible for

unemployment because he failed to obtain a licensed and practicing

physician’s opinion before he resigned from his employment with

Interstate Transfer.            Rice did not file a Respondent’s Brief.

¶11    Section 39-51-2302, MCA, provides in part:

       (1)    An individual must be disqualified for benefits if
              the individual has left work without good cause
              attributable to the individual’s employment.
       (2)    The individual may not be disqualified if the
              individual leaves:
       (a)    employment because of personal illness or injury
              not associated with misconduct upon the advice of a
              licenced and practicing physician and, after

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           recovering from the illness or injury when recovery
           is   certified  by   a  licensed   and   practicing
           physician, the individual returned to and offered
           service to the individual’s employer and the
           individual’s regular or comparable suitable work
           was not available, as determined by the department,
           provided the individual is otherwise eligible; or .
           . . .

¶12   The Board interpreted § 39-51-2302, MCA, to require advice

from a licenced and practicing physician before an individual can

resign from his job because of personal illness.            The District

Court found that the Board’s interpretation of the statute was too

narrow and concluded that the advice of a licensed and practicing

physician was not the exclusive method of showing “good cause” for

leaving work.    We conclude that the District Court was correct.
¶13   Section   39-51-2302(1),   MCA,   disqualifies   an   employee   for

unemployment benefits if he voluntarily quits his job without good

cause attributable to his job.     Rules 24.11.457(1)(a) and (2)(a),

ARM, equate “good cause” with “undue risk” arising from the work

environment.     Section 39-51-2302(2)(a), MCA, provides that an

employee may not be disqualified from receiving benefits when the

claimant quits his job based upon a doctor’s recommendation and

similar suitable work is unavailable when he is able to return to

work.   This later section protects a person’s right to receive

benefits when the medical condition that caused the claimant to

leave work no longer exists, yet the claimant cannot return to work

because his or her job no longer exists.      The requirements of the

two provisions are independent.

¶14   The State argues that because subsection 2(a) requires the

medical advice that prompts a claimant to leave work to come from a


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licensed physician prior to resigning, Rice is prohibited from

receiving     benefits   because   he   did    not        receive   advice   from    a

“licensed and practicing physician” until after he resigned.                    The

District Court concluded that while prior advice from a physician

is an example of “good cause” specifically provided by statute,

there is nothing in the language of the statute to suggest that

there may not be other good causes for leaving employment.                          We

agree with the District Court that to interpret the statute so

narrowly would undermine the humane purpose for which unemployment

insurance is provided.
¶15   In this case, after experiencing blackouts, Rice resigned from

his employment based upon the advice of an LPN who conferred with a

licensed and practicing doctor.             To do otherwise would have been

detrimental to his employer, the public and himself.                   Following a

short delay, Rice’s physician, Dr. Winter, concurred with the

recommendation of the LPN and VA counselors and completed the

required medical documentation, which indicated Rice was not to

operate   a   motor    vehicle.     There     is     no    question   that   Rice’s

blackouts prevent him from continuing his employment as a long haul

truck driver.    Accordingly, we hold that § 39-51-2302(1), MCA, does

not require an employee to obtain a physician’s advice prior to

resigning     from    employment   under     these    circumstances      and   Rice

resigned from his job with “good cause.”

¶16   For these reasons, we affirm the Order of the District Court.


                                             /S/ TERRY N. TRIEWEILER

We Concur:

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/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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