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McCurry v. Unemployment Compensation Board of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


July 24, 2009

LINDA L. MCCURRY, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

The opinion of the court was delivered by: Senior Judge Kelley

Submitted: June 19, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION NOT REPORTED

MEMORANDUM OPINION

Linda L. McCurry (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of a Referee that denied Claimant's application for benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Claimant filed a claim for benefits with the Philadelphia Unemployment Compensation Service Center upon the termination of her employment as a bank teller supervisor for PNC Bank (Employer). The Service Center representative issued a determination denying her claim for benefits pursuant to Section 402(b) of the Law.

Claimant appealed this determination and a hearing was conducted before a Referee on September 25, 2008. On October 2, 2008, the Referee issued a decision disposing of Claimant's appeal in which he made the following relevant findings of fact:

2. The claimant felt that she was suffering from work-related stress.

3. The claimant was under a doctor's care for stress.

4. The claimant was advised by her doctor to leave this employment due to her stress.

5. Therefore, effective June 13, 2008 the claimant took an early retirement from this employment.

6. Prior to retiring the claimant did not supply the employer with any medical documentation outlining the specifics of what was causing her work-related stress.

7. Continuing work was available for the claimant had she desired to remain employed.

Referee's Decision at 1-2.

In addition, the Referee made the following relevant conclusions: The Commonwealth Court has consistently held that in order to become entitled to Unemployment Compensation benefits upon leaving employment for a health reason, a claimant must meet three tests. One, the claimant must have a certifiable health condition which renders her unable to perform her normal job duties, two, the claimant must have made the employer aware of the specifics of said health condition, and three, the claimant must have been available to accept any reasonable accommodation made by the employer which would have allowed the claimant to continue to work.

In the present case, the claimant was advised by her physician to leave this employment due to stress. However, prior to leaving this employment the claimant did not present the employer with medical documentation specifying exactly what was causing her work-related stress. By failing to specify to the employer what was exactly causing her work-related stress, the claimant did not give the employer a reasonable opportunity to accommodate her.

Referee's Decision at 2. Based on the foregoing, the Referee issued an order affirming the Service Center's determination that Claimant was precluded from receiving benefits pursuant to Section 402(b) of the Law. Id.

Claimant appealed the Referee's decision to the Board. On December 4, 2008, the Board issued an opinion and order disposing of Claimant's appeal in which it adopted and incorporated the Referee's findings and conclusions. Based on the foregoing, the Board issued an order affirming the Referee's decision. Claimant then filed the instant petition for review.*fn2

The sole claim raised by Claimant in the instant appeal is that the Board erred in affirming the Referee's decision that she is precluded from receiving benefits pursuant to Section 402(b) of the Law. We do not agree.

As noted above, Section 402(b) of the Law provides that an employee is ineligible for unemployment compensation benefits for any week in which unemployment is due to the employee's voluntary separation from work without cause of a necessitous and compelling nature. The question of whether a claimant had necessitous and compelling cause for resigning is a legal conclusion subject to review by this court. Matvey v. Unemployment Compensation Board of Review, 531 A.2d 840 (Pa. Cmwlth. 1987); Magazzeni v. Unemployment Compensation Board of Review, 462 A.2d 961 (Pa. Cmwlth. 1983).

A claimant who voluntarily quits her employment bears the burden of proving that the termination was caused by reasons of a necessitous and compelling nature. Carter v. Unemployment Compensation Board of Review, 629 A.2d 212 (Pa. Cmwlth. 1993); Uniontown Newspapers, Inc. v. Unemployment Compensation Board of Review, 558 A.2d 627 (Pa. Cmwlth. 1989). In order to establish a necessitous and compelling reason for resigning, a claimant must demonstrate that her conduct was consistent with ordinary common sense and prudence, and that the circumstances promoting the resignation were for reasons which were real, substantial and reasonable, and not for reasons imaginary, trifling or whimsical. Creason v. Unemployment Compensation Board of Review, 554 A.2d 177 (Pa. Cmwlth. 1989). Thus, a claimant must show that the necessitous and compelling reason resulted from circumstances which produced real and substantial pressure to terminate her employment and which would compel a reasonable person under like circumstances to act in the same manner. Carter; Drs. Meltzer & Weisberg v. Unemployment Compensation Board of Review, 471 A.2d 157 (Pa. Cmwlth. 1984). Further, a claimant must establish that she acted with ordinary common sense in quitting, made a reasonable effort to preserve her employment, and had no real choice other than to leave that employment. Carter.

It is true that medical problems may constitute cause of a necessitous and compelling nature requiring a claimant to terminate her employment. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). However, to establish health problems as a compelling reason to quit, the claimant must: (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination; (2) have informed the employer of the medical condition; and (3) to be available, where a reasonable accommodation is made by the employer, for work which is not inimical to her health. Id.; Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). Thus, a claimant who desires to quit a job for health reasons must communicate her health problems to her employer so that the employer can attempt to accommodate the problems. Id. (citing Blackwell v. Unemployment Compensation Board of Review, 555 A.2d 279 (Pa. Cmwlth. 1989)).

In the instant case, the Board found as fact that although Claimant was advised by her doctor to leave her employment due to stress, she never provided Employer with any specific information regarding what was causing her stress prior to her retirement thereby preventing Employer from accommodating her specific needs. These findings are amply supported by the testimony of Employer's branch manager, Melanie Rowan, see N.T. 9/25/08*fn3 at 14*fn4 , and from the letter of resignation that Claimant submitted to Employer.*fn5 As a result, these findings are conclusive on appeal. Taylor.

Moreover, they support the Board's determination that Claimant is ineligible for benefits pursuant to Section 402(b) of the Law. See Lee Hospital, 637 A.2d at 699 ("[A] claimant who desires to quit a job for health reasons must communicate her health problems to her employer so that the employer can attempt to accommodate the problem. [Blackwell]."); Fox v. Unemployment Compensation Board of Review, 522 A.2d 713, 715-716 (Pa. Cmwlth.), petition for allowance of appeal denied, 517 Pa. 600, 535 A.2d 1058 (1987) ("[S]pecifically, Claimant asserts that the referee denied benefits to Claimant because she quit without being under a doctor's advice to do so. It is true that the Law does not require as a prerequisite to establishing necessitous and compelling reasons for a medical quit that the quit be made upon the advice of a doctor. But the referee here did not disqualify Claimant because she quit without being specifically directed to do so by a doctor; he disqualified her because she quit without giving Employer notice of her limitations and thus precluded Employer from the opportunity of accommodating her situation..") (citation omitted).

Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 24th day of July, 2009, the order of the Unemployment Compensation Board of Review, dated December 4, 2008, at No. B-478479, is AFFIRMED.

JAMES R. KELLEY, Senior Judge


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