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GOETTLER DISTRIBUTING v. COMMONWEALTH PENNSYLVANIA (04/30/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 30, 1986.

GOETTLER DISTRIBUTING, 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 Charlene Sedoris, No. B-223386.

COUNSEL

Lawrence P. Lutz, Lindsay & Kemper, for petitioner.

Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Blatt

[ 96 Pa. Commw. Page 633]

Goettler Distributing, Inc. (employer) appeals an order of the Unemployment Compensation Board of Review (Board) which awarded benefits to Charlene Sedoris (claimant) on the basis that she had voluntarily

[ 96 Pa. Commw. Page 634]

    terminated her employment for cause of a necessitous and compelling nature.*fn1

The Board's findings indicate that the claimant's desk at work was positioned near an air conditioning vent, that shortly after beginning her employment she began to experience sinus headaches due to the air conditioning and that she attempted to work while experiencing the headaches which, however, became progressively worse. It was further found that the claimant had been under a doctor's care for the headaches, that she had notified the employer that she was getting such headaches from her exposure to the air conditioning, that she requested that the employer move her desk away from the air conditioning vent and that the employer denied this request. The Board also found that the claimant continued to experience the sinus headaches and that she again notified the employer of her headaches four weeks before her last day of work.

The employer first contends that the Board arbitrarily and capriciously disregarded the findings of fact made by the referee, asserting that the Board made different findings based upon credibility determinations contrary to those made by the referee. It argues that the Board thereby violated our Supreme Court's decision in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). As the employer concedes, however, the different findings made by the Board were based upon its credibility determinations in resolving conflict in the testimony. Pursuant to Treon, the Board need not provide reasons for making findings

[ 96 Pa. Commw. Page 635]

    different from the referee where the findings in question are based upon the resolution of conflicting evidence. Moreover, the Supreme Court has recently reiterated that the Board is the ultimate arbiter of witness credibility and, therefore, is the ultimate finder of fact where there is conflicting evidence in the record. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).

The employer also contends that there was not competent evidence adduced to support the claimant's assertion of a work-related health problem justifying her voluntary termination. It argues that the claimant's own testimony and the medical certificate she offered, which stated merely that her subjective symptoms improved upon her withdrawal from work, but not that she had been advised to quit her job, were insufficient to support her claim of a work-related ailment.

We must disagree, however, noting that, pursuant to Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977), a claimant need only offer competent evidence to support a claim that health problems existed to justify voluntary termination. And, subsequent to Deiss, the Supreme Court specifically rejected the requirement that a claimant must present competent medical testimony in the nature of a physician's testimony, indicating instead that an applicant could use documents and his own testimony to support a claim for health-related unemployment benefits. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982).

The employer cites various cases in which medical documents which had been prepared following a claimant's resignation were deemed insufficient to justify the grant of benefits. We observe that the cited cases precede Steffy and, unlike those cases, here the Board, as the ultimate finder of fact, accepted the claimant's

[ 96 Pa. Commw. Page 636]

    evidence. We do not believe, moreover, that the medical document here concerned was necessarily critical to the Board's decision. We have, for example, recently cited Steffy for the proposition that compelling reasons for voluntary termination may be established by a claimant's "own testimony and/or documentary evidence." Judd v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 372, 376, 496 A.2d 1377, 1379 (1985) (emphasis added).*fn2 Under such a formulation, the evidence adduced would be competent and sufficient to meet the claimant's burden of proof.

Considering the broad and liberal interpretation to be accorded the Unemployment Compensation Law, Steffy, we believe that the disjunctive language in Judd appears to express the better approach. This is particularly true where, as in the instant case, the Board accepted as credible the claimant's testimony and evidence concerning a pedestrian health problem such as her sinus difficulties, as well as her unsuccessful attempts to obtain an accommodation from the employer.

We will, therefore, affirm the order of the Board.

Order

And Now, this 30th day of April, 1986, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Disposition

Affirmed.

Dissenting Opinion by President Judge Crumlish, Jr.:

I respectfully dissent from that portion of the majority opinion which holds that the claimant presented

[ 96 Pa. Commw. Page 637]

    competent evidence of a health-based necessitous and compelling cause for her quit.

The majority concludes that the claimant's testimony alone satisfies the competent evidence standard set forth in Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). As support for this, it quotes a statement in Judd v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 372, 496 A.2d 1377 (1985), that compelling medical reasons for a quit may be established "by any competent evidence such as claimant's own testimony and/or documentary evidence." Id. at 376, 496 A.2d at 1379 (emphasis added). I cannot agree with the interpretation the majority gives to this language.

The quoted passage from Judd cites Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982). The clear import of Steffy is that where the sole testimony presented by a claimant is his own, the Deiss competent evidence requirement may be satisfied if this testimony is accompanied by supporting documents.*fn1 The majority's interpretation of Judd directly conflicts with Steffy. Considering the Judd Court's reliance upon Steffy, I interpret the use of the disjunctive "or" in the quoted passage to mean that

[ 96 Pa. Commw. Page 638]

    a claimant may produce competent evidence consisting either of (1) his testimony and supporting documents, or (2) documentary evidence alone.*fn2

I would conclude that this claimant did not produce competent evidence that her quit was necessitated by a work-related illness. Documentary evidence must "support [a claimant's] contention that at the time of termination his health precluded him from performing his assigned duties." Carroll v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 62, 64, 450 A.2d 280, 281 (1982) (emphasis in original). The only document submitted here was a physician's letter stating that the claimant "relate[d] disappearance of the [headaches] since the time she quit her employment." The letter does not establish that the headaches were so severe and untreatable as to necessitate the claimant's quit. Therefore, as a matter of law, this document does not support the claimant's assertion that the headaches compelled her to resign.

Accordingly, I would reverse the Board's decision granting benefits.


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