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PERMAGRAIN PRODUCTS v. COMMONWEALTH PENNSYLVANIA (06/11/82)

decided: June 11, 1982.

PERMAGRAIN PRODUCTS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the Case of In Re: Claim of Robert A. Dixson, No. B-174150.

COUNSEL

John T. Clary, Clary, Mimnaugh & McGonigle, P.C., for petitioner.

Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judges Mencer and Palladino did not participate in the decision in this case.

Author: Williams

[ 67 Pa. Commw. Page 158]

Permagrain Products, Inc. (Permagrain) has appealed from an order of the Unemployment Compensation Board of Review (Board) granting unemployment benefits to claimant Robert A. Dixson. By its order, the Board affirmed a referee's decision that the claimant had "cause of a necessitous and compelling

[ 67 Pa. Commw. Page 159]

    nature" for voluntarily terminating his employment with Permagrain, and thus was not ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1

Claimant Dixson was employed by Permagrain as a laborer. He commenced his employment in January 1979, at which time he was assigned to a job that exposed him to chemical fumes. Shortly after he began work, the claimant started to experience soreness of the throat, nausea, and dizziness. Consequently, in March 1979, he consulted a physician, a Dr. Abbott, about the symptoms he had been experiencing. The claimant informed his employer that he had been having an adverse physical reaction to the chemical fumes in his work atmosphere, and requested a transfer to a more salubrious job assignment. The employer transferred him to the company's wood shop; and the claimant ceased to experience his former symptoms.

The claimant continued to work in Permagrain's wood shop until April 2, 1979. On that date, he was informed by his supervisor that he was to be reassigned to his former job. The reassignment was to take effect the following day, April 3, 1979; and was required because of a lack of work in the wood shop. Upon being advised of the imminent reassignment, the claimant reminded the employer of his health problems with the chemical vapors. The company then offered him an alternative job as a security guard. That position, however, would require him to occasionally clean dried chemicals from canister lids, apparently with a hose. According to the claimant, he had cleaned those lids before, and became sick in the process. For that reason, the claimant declined the alternative job offer and terminated his employment with Permagrain.

[ 67 Pa. Commw. Page 160]

On April 4, 1979, the claimant applied for unemployment compensation. The Bureau of Employment Security determined that he was eligible for benefits pursuant to Sections 401(d)*fn2 and 402(b)(1) of the Law. The employer appealed that determination to a referee, who, after a hearing, upheld the Bureau's action. When the Board affirmed the referee's decision Permagrain filed the instant appeal.

Before this Court, Permagrain's main thrust is a challenge to the legal efficacy of the evidence to support the referee's decision. Among the referee's findings was a determination that the claimant became ill after being in contact with certain chemicals used by his employer. The referee also found that: "Claimant was advised by his physician to refrain from work which brought him in contact with certain chemicals used by his employer." Those findings were based on a Doctor's Certification completed and signed by the claimant's physician, Dr. Abbott, at the request of the Bureau of Employment Security. The doctor certified that he treated the claimant on March 21, 1979 for sore throat, nausea, and dizziness. The certification ...


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