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ROSEEN NAHAS v. COMMONWEALTH PENNSYLVANIA (08/29/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 29, 1978.

ROSEEN NAHAS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Roseen Nahas, No. B-140315.

COUNSEL

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.

Author: 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. ยง 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 leaving his employment. Shearer, supra; see Taylor v.

[ 37 Pa. Commw. Page 358]

Unemployment Compensation Board of Review, 19 Pa. Commonwealth Ct. 391, 338 A.2d 702 (1975). Such demonstration must include medical evidence. Kubiak v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 421, 371 A.2d 257 (1977); Nedd v. Unemployment Compensation Board of Review, 24 Pa. Commonwealth Ct. 514, 357 A.2d 268 (1976); Unemployment Compensation Board of Review v. Perry, 22 Pa. Commonwealth Ct. 429, 349 A.2d 531 (1975), allocatur denied (1976); Taylor, supra. This evidence must indicate more than that the claimant is disabled, see Eckenrod v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 166, 325 A.2d 320 (1974), or that the claimant is suffering from some specified ailment. See Tollari, supra. The medical evidence must indicate that the job the claimant left was injurious to his health, Taylor, supra ; Tollari, supra, and that he was advised to leave his job by his physician. See Perry, supra ; Eckenrod, supra ; Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A.2d 332 (1974).

In addition, employees with physical infirmities are required to make a reasonable effort to preserve their employment by requesting work compatible with their condition. Shearer, supra ; Nedd, supra ; Tollari, supra.

The decision of the Board denying benefits to the claimant must be affirmed. The claimant gave inconsistent answers to the question as to whether or not she had requested other work prior to terminating her employment for health reasons. Therefore, the Board cannot be said to have capriciously disregarded

[ 37 Pa. Commw. Page 359]

    her testimony in finding that she did not make such a request. See Miller v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 387, 379 A.2d 663 (1977). The claimant's contention that the Board had no power to alter the referee's findings of fact is without merit. See, e.g., Unemployment Compensation Board of Review v. Leonhart, 24 Pa. Commonwealth Ct. 196, 353 A.2d 925 (1976).

Order

And Now, this 29th day of August, 1978, the order of the Unemployment Compensation Board of Review, dated February 2, 1977, denying unemployment compensation benefits to Roseen Nahas, is hereby affirmed.

Disposition

Affirmed.

19780829

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