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MARY M. KERNISKY v. COMMONWEALTH PENNSYLVANIA (09/07/73)

decided: September 7, 1973.

MARY M. KERNISKY, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Mary M. Kernisky, No. B-114349.

COUNSEL

Carl M. Moses, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 10 Pa. Commw. Page 200]

Mary A. Kernisky (claimant) was employed as a preparation cook at the Holiday Inn in West Middlesex from February of 1969 until November 11, 1971. Her job involved preparing food as well as washing pots and pans and cleaning the refrigerator and some shelves. Since 1967 she had been under a doctor's care for reactive depression, arthritis of the spine, essential hypertension, menopausal syndrome and diverticulosis of the colon, and she had previously had a nervous breakdown and received shock treatment therefor. The claimant was counseled by her doctor that working would be good therapy for her but that she should avoid any working conditions which were apt to aggravate her nervous condition. Her employer was aware of her physical condition.

It was the claimant's testimony that her job involved a great deal of pressure and that she had repeatedly asked her employer for assistance. Additionally, she had very poor relations with her immediate supervisor and had repeatedly asked to be moved to another shift, but this request was denied. When she came to work on November 11, 1971, she was upset because she had heard that a staff meeting had been held at which she was the subject of discussion and

[ 10 Pa. Commw. Page 201]

    that certain derogatory remarks had been made about her. She testified that she was so upset that she became too nervous to continue working and walked off her job. She thereafter sought unemployment benefits, which were denied by the Bureau of Employment Security, by a referee and by the Unemployment Compensation Board of Review (Board) because she had left work "without cause of a necessitous and compelling nature."

Section 402(b)(1) of the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. ยง 802(b)(1), provides that: "An employee shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ." At any time a person becomes unemployed by a voluntary termination of his work, he then assumes the burden of showing that such termination was with cause of a necessitous and compelling nature. Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 197, 300 A.2d 295 (1973); Rogan Unemployment Compensation Case, 185 Pa. Superior Ct. 240, 138 A.2d 229 (1958).

[ 10 Pa. Commw. Page 202]

It is clear, of course, that unemployment compensation is not sickness insurance and was not intended to compensate those who quit work because of illness. Nicholson Unemployment Compensation Case, 196 Pa. Superior Ct. 600, 176 A.2d 181 (1961). And mere dissatisfaction with one's wages or working assignment does not constitute cause of a necessitous and compelling nature for terminating employment. James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972). In some instances, however, physical disability may constitute a necessitous and compelling reason for leaving one's employment and would not render the employe ineligible for unemployment compensation. Palovich Unemployment Page 202} Compensation Case, 194 Pa. Superior Ct. 198, 166 A.2d 339 (1960). And possible aggravation of a nervous condition can be a necessitous and compelling cause for terminating work. McComb Unemployment Compensation Case, 179 Pa. Superior Ct. 424, 116 A.2d 92 (1955).

Here there is no doubt that the claimant was suffering from a nervous condition and that, although she had been advised by her physician to seek work as therapy, she was also warned to avoid working conditions which were apt to aggravate her nervous condition. The testimony is undisputed that the claimant was often under much pressure at her work and that there was tension between the claimant and her immediate supervisor. The Board found that "the claimant voluntarily terminated her employment because she believed that the requirements of the job were aggravating her nervous condition." We ...


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