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Ann Kearney Astolfi DMD PC v. Unemployment Compensation Board of Review

May 27, 2010

ANN KEARNEY ASTOLFI DMD PC., PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: January 22, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Ann Kearney Astolfi DMD PC (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) granting benefits to Dorene W. Ditomasso (Claimant). In doing so, the Board reversed the decision of the Referee that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. §802(b) because she had voluntarily left her job.*fn1 Concluding that the facts, as found, do not support the Board's conclusion that Claimant resigned from her job for necessitous and compelling reasons, we reverse the Board.

Claimant worked for Employer as a receptionist and surgical assistant from August 2006 to March 2, 2009, when she resigned. Claimant did so because she claimed to have been subjected to repeated verbal abuse by Dr. Astolfi and by one of her co-workers. She then applied for unemployment compensation benefits, and they were granted by the UC Service Center. Employer appealed, and the matter was assigned to a Referee. Employer did not participate in the hearing before the Referee on May 13, 2009.*fn2

Claimant testified that the dental office, consisting of Dr. Astolfi and four employees, was "constant chaos in a small situation." Reproduced Record at 29a (R.R. __). After a former assistant, Gretchen Kelly, was rehired in 2008, Claimant was thrust into the midst of an ongoing conflict between Kelly and a receptionist. On several occasions, Claimant met with Dr. Astolfi to express her discomfort at having to act as this intermediary. According to Claimant, [t]his went on for three months. Several times I approached Dr. Astolfi in her office with her door closed and her telling me I was draining her energy and acting like one of her children, that I needed to be more aggressive and . just tell them to deal with it . ."

R.R. 27a-28a. On another occasion Claimant missed work, on a Friday, because of bronchitis. When she returned on Monday, no one spoke to her. A few days later, Dr. Astolfi summoned Claimant into her office and told her to "shape up" or she would "end up like" a former employee who had been terminated. R.R. 29a. When Claimant started to cry, Dr. Astolfi remarked that crying is a sign of immaturity.

The final incident that caused Claimant's resignation occurred on March 2, 2009. On that day, Claimant had spent extra time in a post-operative session with a patient whose mother had recently passed away so that she could offer condolences. According to Claimant, after the patient left the office, Dr. Astolfi and Gretchen Kelly "started yelling at me for speaking too long to this patient. They told me that I talk way too much." R.R. 30a. Claimant reminded them that at a staff meeting earlier that day they had complimented her for making the patients feel comfortable. Kelly responded, "maybe you just need to stop talking." Id.

Claimant testified that this chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note dated April 22, 2009, from her psychiatrist, Dr. Abel Gonzalez, stating that Claimant "expressed to me severe stress from the conditions at her work." R.R. 73a. Claimant also offered a note dated April 23, 2009, from her chiropractor, Dr. Angela Kelly, opining that Claimant's headaches "were likely associated with clenching of the jaw and cervical spine dysfunction." R.R. 74a. Dr. Kelly observed that clenching of the teeth is a "direct response to stress," and that Claimant had complained of work stress on several occasions. Id. Dr. Kelly wrote that she had "seen a difference in [Claimant's] health since she left her job." Id.

The Referee denied benefits, reasoning that upset emotions and an inability to get along with co-workers do not constitute cause of a necessitous and compelling nature to quit one's job. The Referee also held that Claimant failed to offer sufficient evidence to prove that she quit her job for medical reasons. Claimant appealed to the Board. The Board determined that the record was incomplete and remanded the matter for additional testimony before a Referee designated as the Board's hearing officer. The hearing officer conducted the remand hearing on July 27, 2009.

Claimant's testimony was similar in substance to that presented at the first hearing. She explained her belief that Dr. Astolfi was trying to induce her to quit by slowly taking away her responsibilities after Kelly was rehired. Claimant testified that being "picked on" and criticized at work caused her great anxiety and stress. R.R. 53a. Claimant believed her resignation was medically necessary, and she reiterated that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor, Dr. Kelly, dated May 22, 2009, stating that

I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place.

R.R. 40a.

At the remand hearing, Dr. Astolfi disputed Claimant's characterization of the work atmosphere and the events leading up to Claimant's resignation. She acknowledged that Claimant had approached her about her stress level but added that Claimant never informed her that a doctor had advised her to resign. Dr. Astolfi disagreed that she and Claimant had an adversarial relationship or that she had ever yelled at Claimant. Dr. Astolfi could not understand Claimant's statement that she feared reprisal or termination, ...


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