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WALTER E. DEISS v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. WALTER E. DEISS (01/05/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 5, 1977.

WALTER E. DEISS
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. WALTER E. DEISS, APPELLANT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Walter E. Deiss, No. B-130752.

COUNSEL

Edward Van Stevenson, Jr., with him Michael A. Donadee, for appellant.

Sandra Christianson, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 28 Pa. Commw. Page 93]

This is an appeal by Walter E. Deiss (Deiss) from an order of the Unemployment Compensation Board of Review (Board) dated April 6, 1976. The Board's order affirms a referee's decision denying unemployment benefits.

Deiss was employed by the Gordon Terminal Service (Gordon) to remove molded plastic bottles from a production line and place them into shipping boxes. He voluntarily terminated this employment relationship after one week. Deiss contends that a job-related health problem caused an inability to perform the job.

Deiss' application for unemployment benefits was denied by the Bureau of Employment Security and a referee affirmed.*fn1 On appeal to the Board, the case

[ 28 Pa. Commw. Page 94]

    was remanded to allow additional testimony on Deiss' health problem.

On remand, a psychotherapist, who had examined Deiss after he had left his employment, testified that Deiss had a "character disorder." He believed the work at Gordon's was incompatible with the disorder. It was his professional opinion that Deiss preserved his health by leaving. After considering this testimony, the Board voted to affirm the referee's decision denying benefits.*fn2

Deiss does not dispute that he left his employment voluntarily. The burden is upon him therefore to establish that he did so for a necessitous and compelling reason. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 318 A.2d 398 (1974). He asserts that the testimony of the psychotherapist established such a reason and that his burden has been sustained. We do not agree.

To sustain his burden, the claimant must, in effect, demonstrate that his disability left him no real choice but to leave his employment. See Unemployment Compensation Board of Review v. Kapsch, 18 Pa. Commonwealth Ct. 456, 336 A.2d 652 (1972). The record reveals that Deiss was not advised by a physician to terminate his employment.*fn3 The testimony of the psychotherapist, who examined him after he quit, is of little evidentiary value as it does not adequately explain and buttress the health reasons as they existed

[ 28 Pa. Commw. Page 95]

    on the date of his termination. Eckenrod, supra note 3. See Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A.2d 332 (1974); Tollari v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A.2d 833 (1973). It is clear that Deiss' unsupported statement that the working conditions adversely affected his health is insufficient to shoulder his burden. Lego v. Unemployment Compensation Board of Review, 24 Pa. Commonwealth Ct. 569, 357 A.2d 701 (1976). After carefully reviewing the record, we find substantial evidence supporting the findings and decision of the Board. We affirm the Board.

Order

And Now, this 5th day of January, 1977, it is ordered that the appeal of Walter E. Deiss is hereby dismissed, and the order of the Unemployment Compensation Board of Review is hereby affirmed.

Disposition

Affirmed.


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