Opinion
Argued October 29, 1976
January 5, 1977.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Burden of proof — Medical cause — Insufficient evidence.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless he proves that the termination was for a cause of a necessitous and compelling nature. [93-4]
2. Testimony of an employe that working conditions generally had an adverse effect on his health, supported only by medical testimony which pertained to a medical condition found only after his termination, is insufficient to establish that the voluntary termination of employment was for a cause of a necessitous and compelling nature. [94-5]
Argued October 29, 1976, before Judges CRUMLISH, JR., KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 867 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Walter E. Deiss, No. B-130752.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Edward Van Stevenson, Jr., with him Michael A. Donadee, for appellant.
Sandra Christianson, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal by Walter E. Deiss (Deiss) from an order of the Unemployment Compensation Board of Review (Board) dated April 6, 1976. The Board's order affirms a referee's decision denying unemployment benefits.
Deiss was employed by the Gordon Terminal Service (Gordon) to remove molded plastic bottles from a production line and place them into shipping boxes. He voluntarily terminated this employment relationship after one week. Deiss contends that a job-related health problem caused an inability to perform the job.
Deiss' application for unemployment benefits was denied by the Bureau of Employment Security and a referee affirmed. On appeal to the Board, the case was remanded to allow additional testimony on Deiss' health problem.
Denial was on the basis of Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (b)(1). The section reads pertinently:
An employee shall be ineligible for compensation for any week —
. . . .
(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .
On remand, a psychotherapist, who had examined Deiss after he had left his employment, testified that Deiss had a "character disorder." He believed the work at Gordon's was incompatible with the disorder. It was his professional opinion that Deiss preserved his health by leaving. After considering this testimony, the Board voted to affirm the referee's decision denying benefits.
The Board also made this additional finding of fact:
#4. At the time the claimant terminated his employment, he was not under the care of a doctor and he was not advised by a doctor to terminate his employment.
Deiss does not dispute that he left his employment voluntarily. The burden is upon him therefore to establish that he did so for a necessitous and compelling reason. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commw. 131, 318 A.2d 398 (1974). He asserts that the testimony of the psychotherapist established such a reason and that his burden has been sustained. We do not agree.
To sustain his burden, the claimant must, in effect, demonstrate that his disability left him no real choice but to leave his employment. See Unemployment Compensation Board of Review v. Kapsch, 18 Pa. Commw. 456, 336 A.2d 652 (1972). The record reveals that Deiss was not advised by a physician to terminate his employment. The testimony of the psychotherapist, who examined him after he quit, is of little evidentiary value as it does not adequately explain and buttress the health reasons as they existed on the date of his termination. Eckenrod, supra note 3. See Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commw. 597, 317 A.2d 332 (1974); Tollari v. Unemployment Compensation Board of Review, 10 Pa. Commw. 589, 309 A.2d 833 (1973). It is clear that Deiss' unsupported statement that the working conditions adversely affected his health is insufficient to shoulder his burden. Lego v. Unemployment Compensation Board of Review, 24 Pa. Commw. 569, 357 A.2d 701 (1976). After carefully reviewing the record, we find substantial evidence supporting the findings and decision of the Board. We affirm the Board.
There may be a case where a claimant terminates while suffering from a mental disorder of such a nature as to mitigate his failure to consult a doctor before quitting. This is not such a case and falls under the general rule of Eckenrod v. Unemployment Compensation Board of Review, 15 Pa. Commw. 166, 325 A.2d 320 (1974).
ORDER
AND NOW, this 5th day of January, 1977, it is ordered that the appeal of Walter E. Deiss is hereby dismissed, and the order of the Unemployment Compensation Board of Review is hereby affirmed.