Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Anita L. Bercilosky, No. B-170245.
John L. Walder, for appellant.
John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.
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Anita L. Bercilosky has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision denying Ms. Bercilosky unemployment compensation benefits on the ground that she voluntarily left her employment without cause of a necessitous and compelling nature. Section 402(b)(1) of the Unemployment Compensation
[ 54 Pa. Commw. Page 237]
Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1). We reverse.
Ms. Bercilosky had been employed by Norristown State Hospital for three and one-half years as a psychiatric aide. This work required her to lift bedridden patients. She began to have back pains and took an extended sick leave effective September 30, 1978. On November 15, 1978, while on leave, Ms. Bercilosky was involved in an automobile accident which aggravated her back condition. Her physician later told her that she should not resume work and that she should have physical therapy. The therapy was expected to last one month. Ms. Bercilosky told the Hospital of these developments. She was offered a one month leave of absence, after which she could return to work at the Hospital upon her release by her physician. Ms. Bercilosky would not accept the leave of absence and, on November 19, 1978, resigned from her employment with the Hospital.
The Office of Employment Security granted Ms. Bercilosky unemployment compensation benefits. The Hospital appealed and a hearing was held before a referee. The referee concluded that although Ms. Bercilosky's medical condition was substantiated, her refusal to accept the leave of absence evidenced a failure on her part to preserve the employment relationship. The referee held that Ms. Bercilosky did not have cause of a necessitous and compelling nature for terminating her employment and therefore denied benefits. The Board, adopting the referee's findings of fact, affirmed.
Ms. Bercilosky contends that the Board erred in concluding that her refusal to accept a leave of absence negated the existence of a necessitous and compelling cause for her resignation. Ms. Bercilosky first says that the Board's finding that the Hospital "offered the
[ 54 Pa. Commw. Page 238]
claimant a one month leave of absence with the promise to discuss alternate jobs at the expiration of this leave" is unsupported by the record. We agree. While a Hospital representative testified that the Hospital policy included the provision for a discussion of alternatives upon the expiration of an employee's leave, when indicated, there is no evidence in the record that a discussion of this sort was offered or suggested to Ms. Bercilosky. Therefore, the finding that she was promised a discussion of job alternatives must be rejected. Ms. Bercilosky then argues that the Board capriciously disregarded competent evidence when it failed to find that her leave of absence was conditioned upon her returning to work as a psychiatric aide only, thus putting her back in the job which originally caused her back problem. Again, we agree. The testimony before the referee shows that Ms. Bercilosky was told that she would have to return to her position as a psychiatric aide upon the expiration of her leave. The Hospital's ...