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MARLENE GREEN v. COMMONWEALTH PENNSYLVANIA (08/02/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 2, 1982.

MARLENE GREEN, 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 Marlene Green, No. B-191374.

COUNSEL

Mark S. Sedley, for petitioner.

Karen Durkin, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 68 Pa. Commw. Page 102]

Marlene Green (claimant) asserts that she should not have been denied benefits by the Unemployment Compensation Board of Review (Board) which found that she voluntarily terminated her employment without cause of a necessitous and compelling nature.*fn1

The claimant was last employed as a hostess/filler by Dunkin Donuts. She had informed her employer at

[ 68 Pa. Commw. Page 103]

    the time of her hire on November 1, 1979, that she had had back problems but felt that they would not hinder her in her duties. On August 30, 1980, she voluntarily terminated her employment due to back pains from lifting trays of doughnuts but did not give her employer any reason*fn2 for quitting.

It is well-settled that an employe who voluntarily terminates employment for health reasons must "(1) introduce documentation that a physician advised claimant to terminate prior to termination . . . (2) inform the employer of the health problem . . . and (3) specifically request the employer to transfer [her] to a more suitable position. . . ." Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 554, 381 A.2d 132, 135 (1977) (citations omitted). Moreover, we have recognized that a "[c]laimant's failure to meet any one of those three conditions will bar her claim for unemployment compensation benefits." Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 305, 426 A.2d 719, 721 (1981) (emphasis added).

Our review of the record here indicates that the claimant failed to notify her employer that her back problem was aggravated by her duties prior to her voluntary termination, and we must specifically reject her argument that her statement to her employer at her initial hiring interview meets the second condition required in Deiss. Moreover, although her employer admitted that lighter work was unavailable and that a request for such would have been "futile",*fn3 we must nevertheless conclude that the claimant has failed to

[ 68 Pa. Commw. Page 104]

    satisfy the third condition in Deiss because the record reveals she did not request a leave of absence*fn4 or establish that such request would have been futile.*fn5 It is clear, therefore, that she did not make "every effort . . . to sustain the employer-employe relationship." Wenrich, 34 Pa. Commonwealth Ct. at 189, 382 A.2d at 1304.

Inasmuch as this claimant has satisfied less*fn6 than all of the conditions set forth in Deiss, we will therefore affirm the order of the Board. Ruckstuhl.

[ 68 Pa. Commw. Page 105]

Order

And, Now, this 2nd day of August, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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