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BEVERLY A. HOFFMAN v. COMMONWEALTH PENNSYLVANIA (07/22/87)

decided: July 22, 1987.

BEVERLY A. HOFFMAN, 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 Beverly A. Hoffman, No. B-244104.

COUNSEL

Edith Benson, for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Judge Doyle.

Author: Barry

[ 107 Pa. Commw. Page 572]

This is an appeal by claimant, Beverly A. Hoffman, from the Unemployment Compensation Board of Review's reversal of the referee's decision to grant claimant benefits under Section 402(b)(1) of the Pennsylvania Unemployment Compensation Act (Act), Act of Dec. 5, 1936, P.L. 2987, as amended, 43 P.S. 802(b)(1) (relating to voluntarily leaving work for necessitous and compelling cause).

Claimant was employed as a custodial worker for Polk Center (employer) when she was hospitalized three times between January of 1985 and May 31, 1985, her last day of work. She resigned on May 31, 1985 informing employer that she was no longer able to work due to serious health problems.*fn1 The referee found that claimant's doctor advised claimant to seek lighter work duties and imposed limitations on her permitted lifting, stooping and bending. The referee further found that although there were no light duty jobs available when claimant terminated her employment, employer could have arranged for the availability of lighter duties for a limited time had claimant so requested. The referee granted benefits. The Board reversed finding that claimant "did not take the necessary steps to preserve her employment". This legal conclusion -- one which the referee failed to make -- was drawn from the referee's findings of fact Nos. 6 and 7 which read:

6. The claimant did not provide her employer with any medical documentation attesting to the severity or presence of a medical condition.

[ 107 Pa. Commw. Page 5737]

. The claimant did not inform her employer of the fact that she could perform work with limitations.

On appeal claimant contends that the Board erred because she communicated her medical problems and inability to perform her regular duties to her employer and was not required to seek alternate employment where such a gesture would have been futile. We agree and reverse.

Our scope of review is limited to whether the Board's findings are supported by substantial evidence, or whether it committed a violation of claimant's constitutional rights or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704. The burden of establishing the existence of necessitous and compelling cause is on the employee. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). It is well established that medical problems can create necessitous and compelling cause to leave employment. Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). However, the employee has an obligation to communicate his medical problems to his employer. In Genetin our Supreme Court stated that:

Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his ...


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