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ERIC W. FETTERMAN v. COMMONWEALTH PENNSYLVANIA (11/07/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 7, 1983.

ERIC W. FETTERMAN, 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 Eric Fetterman, No. B-198931.

COUNSEL

Lenore M. Urbano, with her Danna Rich-Collins, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Barry, and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 78 Pa. Commw. Page 234]

This case comes here on appeal from a decision of the Unemployment Compensation Board of Review (Board) denying benefits to Eric W. Fetterman (claimant).

The claimant was employed by the Lycoming County Juvenile Probation Office (employer) as a juvenile probation aide for approximately one and one-half years until his voluntary resignation for health-related reasons*fn1 on April 20, 1981. The Office of Employment Security (OES) denied his application for benefits holding that benefits here were precluded by 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). The referee, on appeal, reversed this decision but he was, in turn, reversed by the Board, which agreed with the OES concluding that the claimant had failed to show cause of a necessitous and compelling nature to justify his voluntary termination.

Where the party with the burden of proof in an unemployment compensation case does not prevail before the Board, our scope of review is limited to determining whether or not the findings of fact are consistent with each other and with conclusions of law and

[ 78 Pa. Commw. Page 235]

    can be sustained without a capricious disregard of competent evidence. Querry v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 170, 437 A.2d 1048 (1981). And, of course, whether or not a voluntary termination of employment was for cause of a necessitous and compelling nature is a legal conclusion, always subject to appellate review. Eduardo v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 424, 434 A.2d 215 (1981).

Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1) provides in pertinent part as follows:

     an employee shall be ineligible for compensation for any week . . . in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.

And, it is the claimant's burden to prove that the cause for his voluntary quit was of a necessitous and compelling nature. Reid v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 355, 393 A.2d 51 (1978). When related to health reasons, furthermore, a claimant must (1) introduce competent testimony that at the time of termination adequate health reasons existed to justify termination, and (2) inform the employer of the health problems. Southard v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 178, 454 A.2d 661 (1983).*fn2 At issue here, specifically, is the first prong of the Southard requirements.

[ 78 Pa. Commw. Page 236]

In Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977), our Supreme Court said: "If a claimant realizes that either physically or emotionally he is unable to continue working and he offers competent testimony that, at the time of termination, adequate health reasons existed to justify termination, we can perceive no reason to require claimant to prove that he was advised to quit his job." 475 Pa. at 555-56, 381 A.2d at 136. In Steffy v. Unemployment Compensation Board of Review, Pa. , 453 A.2d 591 (1982), the same court held that a claimant could meet his burden of producing competent testimony without the testimony of a physician. Pa. at , 453 A.2d at 594. We must decide, therefore, whether or not the evidence offered by the claimant here was of the type contemplated in Steffy if we are to reach the legal conclusion that competent adequate evidence of the claimant's health problems existed to justify his termination.

The Board made, inter alia, the following findings of fact: a) On April 20, 1981, the claimant voluntarily terminated his job because the stress and frustration of his employment were adversely affecting his health (finding of fact number 2); b) the claimant was advised by his physician, that if he voluntarily terminated his employment, his health would probably improve (finding of fact number five). In reversing the referee and thereby denying the claimant benefits, the Board said:

The claimant did not offer competent testimony that his voluntary termination was for health reasons. The doctor's statement did not advise the claimant to quit.*fn3 The certificate stated that the claimant's quitting his employment would probably help his health. The

[ 78 Pa. Commw. Page 237]

    physician's supposition as to the claimant's health is insufficient to justify the claimant's voluntarily terminating his employment.

We believe, however, that the Board has misplaced the weight to be given to the physician's statement.*fn4 While concluding that the stress and frustration of his job adversely affected the claimant's health, the Board seems to have denied benefits because of the "probable" nature of the doctor's statement. Such reasoning, however, is inconsistent with Steffy. The claimant here testified that he was suffering from an assortment of illnesses,*fn5 which enabled the Board,

[ 78 Pa. Commw. Page 238]

    presumably, to conclude that stress and frustration, which were adversely affecting his health, caused him to quit, and the record adequately supports a conclusion that health problems existed to justify the termination. See Steffy; Gennaria v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 354, 461 A.2d 918 (1983).

We will, therefore, reverse the decision of the Board and remand to the Board for the computation of benefits.

Order

And Now, this 7th day of November, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed, and the case is remanded to the Board for computation of benefits.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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