Opinion
No. 1016 C.D. 2014
01-27-2015
Brian M. Ehrig, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Brian M. Ehrig (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) affirming a Referee's Decision finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law). On appeal, Claimant argues that the Board erred by not shifting the burden to Behr Process Corporation (Employer) and requiring Employer to show that it identified and offered suitable work to Claimant to accommodate his health problems. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was last employed by Employer as a laborer from April 1999 until January 3, 2014. (Referee Decision, Findings of Fact (FOF) ¶ 1.) Claimant filed an internet claim for UC benefits stating that he quit his employment due to certain health problems. (Internet Initial Claims at 3, R. Item 2.) On the claim form, Claimant: (1) listed his health problems as "heart, anxiety, stress" and his work limitations as "lowering my level of work related stress"; and (2) stated that he informed Employer of his work limitations prior to separation from employment but Employer did not offer him any work within his limitations. (Internet Initial Claims at 3.) Employer responded that Claimant voluntarily resigned for personal reasons that were not disclosed to Employer. (Employer Separation Information, R. Item 3.) The UC Service Center issued a Notice of Determination finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the Law. (Notice of Determination, R.R. at 7-9.) The UC Service Center determined that, because Claimant did not show that he exhausted all alternatives prior to voluntarily quitting his job, he did not prove that he had a necessitous and compelling reason for terminating his employment. (Notice of Determination at 1, R.R. at 7.)
Claimant appealed the Notice of Determination and a hearing ensued before the Referee. Claimant testified on his own behalf and presented the testimony of his wife. Employer presented the testimony of its Human Resources Business Manager, Plant Superintendent, and Claimant's Supervisor. Based on the testimony presented, the Referee made the following findings of fact:
1. The claimant was last employed with [Employer] doing labor at a final rate of pay of approximately $17.00 per hour from April 1999 and his last day worked was January 3, 2014.(FOF ¶¶ 1-10.) The Referee concluded that, although Claimant "certainly suffered repeated injuries and a heart attack," there was no record evidence to support a finding that Claimant notified Employer that he suffered from continuing health and stress issues before he resigned. (Referee Decision at 2.) The Referee concluded further that, after Claimant was released to full duty in June 2012, he "made no subsequent complaints or request for accommodation prior to his notifying the [E]mployer that he was leaving" his employment. (Referee Decision at 2.) Accordingly, the Referee determined that Claimant did not leave his employment due to a necessitous and compelling cause and ruled that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law.
2. In 2005, the claimant suffered a shoulder injury at work and was placed on worker[s'] compensation.
3. The claimant subsequently returned to full duty.
4. In 2009, the claimant suffered a heart attack and was subsequently released for full duty.
5. The claimant asserts that, since his heart attack, he has been on medication for stress and anxiety as well.
6. In March 2012, the claimant suffered a re-injury of his shoulder and he reported the injury to the employer.
7. The employer referred the claimant to its clinic for an evaluation and the claimant was subsequently placed on light duty.
8. The claimant was released for full duty June 5, 2012.
9. The claimant made no further report or complaint about health issues to the employer until January 3, 2014, at which point he informed the employer that he was resigning.
10. The claimant asserts that he voluntarily quit because of health issues including repeated injuries to his shoulder, heart attack and stress.
Claimant appealed to the Board, which adopted the Referee's findings of fact and conclusions of law. (Board Order.) In affirming the Referee's Decision, the Board found Claimant's testimony credible "that an adequate health reason existed at the time of his resignation to justify his separation from employment." (Board Order.) However, the Board further found, based on Employer's credible testimony, that Claimant "did not provide the [E]mployer with the opportunity to accommodate any of the [C]laimant's restrictions prior to resigning." (Board Order.) The Board stated that, while it was not unsympathetic to Claimant's medical condition, he "did not take reasonable steps to preserve the employment relationship before resigning and, therefore, he has not shown that he had a necessitous and compelling reason to quit available work." (Board Order.) Claimant now petitions this Court for review of the Board's Order.
Our review "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014). --------
In support of this appeal Claimant argues that, because the Board found that he had an adequate health reason to justify his voluntary separation from employment, the Board erred by not shifting the burden to Employer and requiring Employer to show that it identified and offered reasonable accommodations to Claimant. Claimant asserts that Employer was informed on many occasions of Claimant's health problems, which included his 2005 and 2012 shoulder injuries and his 2009 heart attack; however, rather than accommodating these health issues, Employer instead gladly accepted Claimant's resignation.
As recently explained by this Court, "when a claimant voluntarily leaves work, the claimant bears the burden to establish that [he] left work for cause of a necessitous and compelling nature in order to be entitled to benefits." Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). Medical conditions or health reasons may be found to be a cause of a necessitous and compelling nature to voluntarily terminate one's employment. Id. To obtain UC benefits based on health-related reasons, a claimant must "demonstrate through competent and credible evidence the following: (1) health reasons of sufficient dimension compelled the [claimant] to quit; (2) the [claimant] informed the employer of the health problems; and (3) the [claimant] is able and available for work if [his] employer can make a reasonable accommodation." Id. at 1004-05. Although a claimant is not required to request or propose any specific accommodation, a claimant "must communicate [his] health problems to [his] employer so that the employer can attempt to accommodate the problem." Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 699 (Pa. Cmwlth. 1994). As such, notification to an employer of a claimant's health problems after the claimant has resigned from employment is too late to afford the employer the opportunity to accommodate the claimant. Bailey v. Unemployment Compensation Board of Review, 653 A.2d 711, 713-14 (Pa. Cmwlth. 1995); Blackwell v. Unemployment Compensation Board of Review, 555 A.2d 279, 282 n.6 (Pa. Cmwlth. 1989). However, if the claimant proves that he gave his employer the requisite notice prior to separation from employment, the burden shifts to the employer "to establish that it made a reasonable attempt to identify and propose possible accommodations for the employee's health problems." Watkins, 65 A.3d at 1005.
Here, there is no dispute that Employer was aware that Claimant suffered a heart attack in 2009, after which Claimant returned to full duty, and that he suffered work-related injuries to his shoulder in 2005 and 2012, resulting in Claimant being placed on light duty in March 2012. There is also no dispute that Claimant returned to full duty without restrictions in June 2012. Claimant testified that he resigned in January 2014 because he could no longer perform his job due to his shoulder injuries, heart problems, stress, and anxiety, (Hr'g Tr. at 8-10, R.R. at 18-20), but Claimant offered no testimony regarding how or when he notified Employer prior to his resignation of the health problems he was experiencing between June 2012 and January 2014, (Hr'g Tr. at 5-10, R.R. at 15-20). It appears that Claimant believes that, because Employer was aware that Claimant had experienced health problems in the past, Employer should have been aware that he was resigning because he could no longer perform his job due to his continuing health problems. However, this Court has previously rejected a claimant's theory of constructive notice and held that "'[a] constructive notice concept cannot obviate the claimant's duty to inform the employer of a health problem before voluntarily terminating employment.'" Lee Hospital, 637 A.2d at 699 (quoting Allen v. Unemployment Compensation Board of Review, 501 A.2d 1169, 1171 (Pa. Cmwlth. 1985)). Thus, it was incumbent upon Claimant to notify Employer, before he resigned, that he continued to suffer from health problems that were affecting his ability to perform his normal job duties and not assume that Employer was aware of his current situation.
Employer's witnesses, whom the Board found credible, all testified that they were surprised by Claimant's resignation because Claimant had not informed Employer that he was experiencing health problems or that he was having difficulty performing his job. (Hr'g Tr. at 12-17, R.R. at 22-27.) Employer's witnesses also testified that Claimant did not inform Employer why he was resigning. (Hr'g Tr. at 12-17, R.R. at 22-27.) Although Employer's Plant Superintendent testified that he approached Claimant and asked Claimant why he was resigning, and Claimant informed Plant Superintendent that it was due to his personal health issues and stress, this conversation took place after Claimant tendered his resignation. (Hr'g Tr. at 14-15, R.R. at 24-25.) Thus, at the point of Claimant's resignation, it was too late to afford Employer the opportunity to accommodate Claimant. Blackwell, 555 A.2d at 282 n.6. In fact, Plant Superintendent testified that Employer determined that it was not an option at that point to offer Claimant a light-duty position. (Hr'g Tr. at 15, R.R. at 25.)
Accordingly, because Claimant did not prove that he notified Employer of his health problems prior to terminating his employment the burden did not shift to Employer to show that it offered Claimant a reasonable accommodation. Thus, we discern no error by the Board.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 27, 2015, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge