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05/14/97 PHOENIX WOMEN'S HEALTH CENTER v.

COMMONWEALTH COURT OF PENNSYLVANIA


May 14, 1997

PHOENIX WOMEN'S HEALTH CENTER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appealed From No. B-356008. State Agency, Unemployment Compensation Board of Review.

Before: Honorable Dan Pellegrini, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri

The opinion of the court was delivered by: Silvestri

OPINION BY

SENIOR JUDGE SILVESTRI

Filed: May 14, 1997

Phoenix Women's Health Center (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that reversed the decision of the referee and granted unemployment compensation benefits to Karyl L. Moser (Moser).

The facts, as found by the Board *fn1, are not in dispute and are summarized as follows. Moser, who was employed as an office manager and licensed practical nurse at a rate of $10.65 an hour, last worked for the Employer on June 21, 1996. Moser sustained a non work-related injury *fn2 for which she was hospitalized on June 23, 1996. Moser reported off from work on June 24, 1996 and was granted a medical leave of absence. Moser received a medical release to perform "limited work duties" *fn3 and reported to the Employer on July 22, 1996 to discuss returning to work. Moser was informed at that time that, since the Employer would have to hire another person for the duties which she was physically unable to perform, it could not afford to pay her former wage but instead offered to pay her a wage of $7.00 an hour while her job duties were restricted. Moser told the Employer that she could not adjust her wages to that extent and instead offered to work only four hours a day and collect partial unemployment benefits; the Employer rejected Moser's counter offer. Moser understood that, in order to continue her employment, she would have to take a $3.65 per hour reduction in wages. Moser informed the Employer on July 26, 1996 that she needed to collect her regular salary and would not work for $7.00 an hour and quit her employment. The lone reason for Moser's decision to quit was the reduction in her wages.

Moser applied for unemployment compensation benefits which were granted by the local job center. The Employer appealed to the referee who, after conducting a hearing on the matter, reversed and disallowed benefits under Section 402(b) of the Unemployment Compensation Law *fn4 (Law). Moser appealed to the Board which reversed the decision of the referee and granted benefits.

The Board concluded that Moser was "effectively demoted from a wage rate of $10.65 per hour to $7.00 per hour because of her physical restrictions." (Emphasis added). The Board further concluded that, because the reduction in her wages was substantial *fn5, Moser had "good cause" to quit her job. In support thereof, the Board relied on Allegheny Valley School v. Unemployment Compensation Board of Review, 666 A.2d 1144 (Pa. Commw. 1995), petition for allowance of appeal granted, 544 Pa. 613, 674 A.2d 1075 (1996), wherein this Court held that if the demotion substantially reduces the claimant's pay, or if the claimant's job responsibilities change significantly because of the demotion, then the claimant will be deemed to have good cause for voluntarily terminating his employment and shall be eligible for benefits as long as no conduct amounting to willful misconduct is involved. 666 A.2d at 1147. *fn6

The Employer argues that the Board erred in interpreting this case to be one in which the claimant terminated her employment in lieu of accepting a "demotion." We agree and therefore conclude that the Board's reliance on Allegheny Valley School is misplaced. In Allegheny Valley School, the claimant was unilaterally demoted by the employer due to unsatisfactory performance of his job duties. In the instant matter, Moser was not demoted by the Employer but rather was unable to perform her normal duties as a result of her non work-related injury.

The issue raised herein by the Employer is whether the Board erred in concluding that Moser had "good cause," i.e. cause of a compelling and necessitous nature, for voluntarily terminating her employment. *fn7 Cause of a compelling and necessitous nature is that cause which results from overpowering circumstances which produce pressure, both real and substantial, to terminate one's employment which would compel a reasonable person to act in the same manner. Quinn, Gent, Buseck and Leemhuis, Inc. v. Unemployment Compensation Board of Review, 606 A.2d 1300 (Pa. Commw. 1992). *fn8

Section 402(b) of the Law provides, in pertinent part, that "a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a compelling and necessitous nature...." 43 P.S. § 802(b). In order for an employee, who can no longer perform her regular duties due to a physical condition, to remain eligible for benefits, she must: 1) communicate her medical condition to the employer; 2) explain her inability to perform her regularly assigned duties; and 3) to be available, where a reasonable accommodation is made by the employer, for work which is not inimical to her health. See Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982) *fn9; General Building Services, Inc., v. Unemployment Compensation Board of Review, 591 A.2d 774 (Pa. Commw. 1991); Dornblum v. Unemployment Compensation Board of Review, 466 A.2d 747 (Pa. Commw. 1983). There is no dispute that the Employer was aware that the health problems of Moser rendered her unable to perform the job for which she was originally hired. Genetin places the burden on an employer, who is cognizant of an employee's medical problem, to provide "suitable work." *fn10 499 Pa. at 131-132, 451 A.2d at 1356. We must, therefore, determine whether, as a matter of law, the Employer made a reasonable accommodation and provided "suitable work" to Moser. *fn11

There is no dispute that Moser, by reason of her non work-related injury, could not perform her pre-injury duties and that the proposed job was within her physical restrictions. The Board found, and Moser does not dispute, that the only reason she did not accept the proffered job was because of the reduction in salary. The work made available to Moser was at a wage of $7.00 an hour; Moser had previously earned $10.65 an hour for work which she was now unable to perform. Previous earnings, however, is only one of many factors to be considered; even substantial disparity between the claimant's previous wages and the wage of proffered position does not itself render work unsuitable. See Section 402(a) of the Law, 43 P.S. § 802(a) which governs ineligibility for failure to apply for or accept suitable work; Rising v. Unemployment Compensation Board of Review, 621 A.2d 1152 (Pa. Commw. 1993) (where the only real difference between positions was compensation, employment as a truck driver was suitable work for a claimant who was by trade a heavy equipment operator); Eichman v. Unemployment Compensation Board of Review, 409 A.2d 1389 (Pa. Commw. 1980); Unemployment Compensation Board of Review v. Kozinsky, 18 Pa. Commw. 286, 335 A.2d 843 (Pa. Commw. 1975). Clearly, the Employer met its burden under Genetin and Section 4(t) of the Law, 43 P.S. § 753(t) to establish that it had made available to Moser suitable work which she declined to avail herself. Thus, the Board erred in concluding that Moser was not ineligible for benefits under Section 402(b) of the Law, 43 P.S. § 802(b).

Accordingly, the order of the Board will be reversed and benefits will be denied.

SILVESTRI SILVESTRI, Senior Judge

ORDER

AND NOW, this 14th day of May, 1997, the order of the Unemployment Compensation Review Board, dated November 19, 1996, reversing the Referee is reversed and unemployment compensation benefits are denied.

SILVESTRI SILVESTRI, Senior Judge


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