Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Roseen Nahas, No. B-140315.
Retos, Symons and Clarke, for petitioner.
William J. Kennedy, Assistant Attorney General, with him Robert P. Kane, Attorney General, for respondent.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 37 Pa. Commw. Page 356]
Roseen Nahas (claimant) was last employed as a sewing machine operator by Charland Sportswear on a piece-rate basis, and her last day of work was April 19, 1976. Thereafter, she was on a leave of absence until August 2, 1976 because she broke her ankle in an accident at her home. On September 7, 1976, claimant was recalled to work, but because of swelling in her ankle she terminated her employment with Charland Sportswear and subsequently filed for unemployment compensation benefits.
The Bureau of Employment Security (Bureau) issued a determination denying benefits, in accord with
[ 37 Pa. Commw. Page 357]
Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1), which provides that a claimant shall be ineligible for compensation for any week in which claimant's unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. On appeal, the referee issued a decision reversing the Bureau's determination, and a further appeal to the Unemployment Compensation Board of Review (Board) resulted in a decision reversing the referee's ruling. This appeal followed.
Equally applicable here is what we stated in Grimes Poultry Processing Corp. v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 542, 544-45, 377 A.2d 209, 211 (1977):
Initially, we note that physical disability may constitute a necessitous and compelling reason for leaving one's employment and would not render a claimant ineligible for unemployment compensation. Kernisky v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 199, 309 A.2d 181 (1973); accord, Shearer v. Unemployment Compensation Board of Review, 26 Pa. Commonwealth Ct. 444, 364 A.2d 516 (1976). Of course, it is the claimant's burden to demonstrate that the disability does constitute such a reason. See Shearer, supra ; Tollari v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A.2d 833 (1973).
To establish physical disability as a cause of a necessitous and compelling nature, a claimant must demonstrate that he is suffering from a physical infirmity that would justify ...