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09/17/97 GIANT EAGLE v. UNEMPLOYMENT COMPENSATION

September 17, 1997

GIANT EAGLE, INC., PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-359482. State Agency Unemployment Compensation Board of Review.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, 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: September 17, 1997

Giant Eagle, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision and order of the referee granting Judith Cullen (Claimant) compensation benefits.

Claimant worked for Employer in a full-time position as a floral manager. (Referee's FOF 1). Claimant had been off work on leave from approximately January of 1996 through March of 1996 (FOF 2) for a non-work related injury (R.R. 20). On March 29, 1996, Claimant experienced pain in her hip and leg while performing her work duties, and, after requesting permission to leave work, she sought medical attention. (FOF 3). Claimant then requested and was granted short-term disability leave by Employer. (FOF 4). Her short-term disability ended on July 7, 1996, and on July 17, 1996, Claimant's private attending physician, a chiropractor, released her to resume work in a light duty capacity (R.R. 23) with a restriction against lifting over 20 pounds. (FOF 6, 7). An independent medical examiner advised Employer that Claimant was capable of returning to her work duties as a floral manager with a restriction that she could not lift over 20 pounds. (FOF 5).

Claimant informed Employer of her ability to return to employment, and gave Employer the information regarding the restrictions placed on her by her chiropractor (FOF 8); however, because Claimant's chiropractor released her for light duty work, and because Employer had a policy of only providing light duty accommodations to employees whose injuries were work-related, Claimant was told by Employer that no light duty positions were available (9, 10). Claimant asked Employer if she could be cross-trained for some other position (FOF 13); however, Employer explained that only Claimant's previous position as floral manager was available. (R.R. 14, 15). Claimant did not return to work for Employer thereafter.

By letter dated November 13, 1996, Claimant was advised by Employer that she had been removed from Employer's payroll records. (FOF 16). Employer removed Claimant from its records because she had been away from work in excess of Employer's expectations. (See Referee's Finding of Fact, 17).

Thereafter, Claimant applied for benefits with the West Pittsburgh Job Center (Job Center), which, by determination dated December 12, 1996, denied benefits on the basis of Section 402(b) of the Pennsylvania Unemployment Compensation Law (Law), *fn1 concluding that Claimant had voluntarily terminated her position for reasons which were not of a necessitous and compelling nature.

Claimant appealed to the referee, who, by decision and order dated January 30, 1997, reversed the Job Center's determination. The referee determined, contrary to the Job Center's Conclusion, that the case should have been decided pursuant to Section 402(e) of the Law, *fn2 rather than Section 402(b) (voluntary termination). The referee further determined that because there was no basis for denying Claimant benefits under Section 402(e), benefits should have been granted. The Board, by Order dated March 18, 1997 affirmed and adopted the referee's decision as its own.

On appeal here, Employer asserts that the referee erred in concluding that the matter should have been decided under Section 402(e) of the Law (involuntary separation). Instead, Employer maintains that the case should be decided under Section 402(b) of the Law (voluntary separation), and that an examination of the record reveals that Claimant's reasons for voluntarily terminating her employment were not of a necessitous or compelling nature.

Initially, we note that our scope of review is limited to determining whether constitutional rights have been violated, an error of law has been committed or whether necessary findings of fact are supported by substantial evidence. Baertl v. Unemployment Compensation Board of Review, 156 Pa. Commw. 428, 627 A.2d 1232 (Pa. Commw. 1993). In an unemployment compensation case, the issue of whether a termination of services is a voluntary or involuntary is a question of law to be determined by this Court based upon a totality of the facts of record. See Sizer v. Unemployment Compensation Board of Review, 75 Pa. Commw. 57, 460 A.2d 928 (Pa. Commw. 1983). We first turn to the issue of whether Claimant's termination from employment was voluntary or involuntary.

As noted previously herein, the injury for which Claimant originally took a leave from work was not work related. Following her receipt from Employer of short-term disability benefits, Claimant, although offered her previous position with Employer of floral manager, did not return to work because of the light duty restriction indicated by her chiropractor. (R.R. 29). Because Claimant did not return to this position, i.e., she voluntarily terminated her employment, Employer sent her notification that it was removing her from its payroll. (FOF 16, 17).

Based on the foregoing, and our review of the facts of record in their totality, we conclude that Claimant voluntarily terminated her employment with Employer. We next must determine whether she did so for ...


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