Opinion
No. 2048 C.D. 2011
06-14-2012
Clayton I. Fox, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Clayton I. Fox (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's determination that Claimant was ineligible for benefits under Section 402(b) and Section 401(d)(1) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(b) and 801(d)(1).
The facts, as found by the Board, are as follows:
1. The claimant was employed as a truck driver, initially, full-time, moving to part-time, working 32 hours per week from September 25, 2009, through March 14, 2011, the claimant's last day of work.
2. In January 2011, the claimant applied for Social Security retirement benefits and limited his availability to work only 32 hours per week from his previous 40 hour work week.
3. Sometime in March 2011, the claimant's blood pressure exceeded the limited [sic] permitted by the Federal Department of Transportation Regulations for a CDL driver.Board Opinion, September 27, 2011, (Opinion), Findings of Fact Nos. 1-10 at 1-2.
4. The claimant's physician placed the claimant off work on or about March 15, 2011, to treat high blood pressure.
5. The claimant was not released to return to work until May 1, 2011.
6. The claimant chose not to return to work because he was dissatisfied with his employment.
7. The claimant did not discuss his dissatisfaction with the employer prior to his quit.
8. Continuing work was available to the claimant at the time that he did not return to work.
9. The claimant's high blood pressure was not caused by work related stress.
10. The claimant was not able and available to work during the week at issue.
The Board determined:
The Board resolves the conflicts in testimony, in relevant part, in favor of the employer and finds its testimony to be credible.
. . . .
Since Claimant voluntarily left his employment, the burden rests upon him to show cause of a necessitous and compelling nature for so doing.
The claimant has not met this burden. The claimant did not return to work because he was dissatisfied with his work. The claimant's high blood pressure was not caused by work-related stress.
Section 401(d)(1) of the Law provides that compensation shall be payable to an employee who is or becomes unemployed, and who is able and available for suitable work. . . .Opinion at 2.
The claimant was not released to work during the week at issue.
Claimant contends that the Board erred because it based its decision in part on findings of fact that were not supported by the record.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Specifically, with respect to Claimant's eligibility for benefits under Section 402(b), Claimant argues that Finding of Fact No. 6 that Claimant chose not to return to work because he was dissatisfied with his employment and Finding of Fact No. 9 that Claimant's high blood pressure was not caused by work-related stress were unsupported by substantial evidence.
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982).
Regarding Finding of Fact No. 7 in which the Board found that Claimant did not discuss his dissatisfaction with Goodwill, Inc. [Employer] prior to him quitting, a review of the record is necessary. Claimant testified he was placed on six months probation and reduced from a Class Three to Class One after he was hit near the eye by a cord from a television that was thrown in a dumpster. Claimant was upset because he did not cause the accident. Notes of Testimony, August 22, 2011, (N.T.) at 7-9. Claimant talked to Michelle Zajac (Zajac), human resources director for Employer, prior to his resignation about the reduction from Class Three to Class One. N.T. at 12. He also expressed concern over his treatment. N.T. at 22.
Zajac testified concerning her meeting on April 20, 2011, with Claimant:
Mr. Fox had made the phone call to me indicating that he was issued a write up, and that he wanted to make sure that what was in his file was actually what he signed because he wasn't provided a copy. I then set up the appointment. And that phone call came in, I believe it was the day before.N.T. at 24-25.
. . . .
I explained to Mr. Fox that all employees are allowed to have a copy of any write up that they have been issued. I then set up an appointment for - he indicated that he wanted to review his file. As it's any employee's right to review their file, I set up an appointment with him the next day. Mr. Fox came in that morning I presented him with the file, reviewed the rules on what you are and are not allowed to have copies of, what you are and are not allowed to remove from your file. He reviewed the file for approximately 30 minutes. At the end of the meeting, [he] actually indicated that everything was as it should be. I asked him specifically you see anything that there are any concerns with, and he said, no, I'm surprised there aren't. Mr. Fox left my office. At that point, I had no reason to believe that he would not be returning to work.
When asked whether Claimant raised any of the concerns that he did at the hearing regarding his supervisors and working conditions, Zajac answered, "No." N.T. at 25.
The Board was faced with two conflicting versions of what took place. The Board explicitly resolved the conflict in favor of Employer and found its version more credible. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The Board did not err when it made Finding of Fact No. 7.
With respect to Finding of Fact No. 9, in which the Board found that Claimant's high blood pressure was not caused by work-related stress, Claimant argues that the Board did not merely determine that Claimant failed to prove that his high blood pressure was caused by work-related stress but found as a fact that the high blood pressure was not caused by work-related stress.
For an employee's health to be considered a bona fide reason to quit employment, a claimant must (1) provide competent testimony that adequate health reasons exist to justify the voluntary quit, (2) have informed the employer of the health problems, and (3) be available to work if reasonable accommodations are possible. A claimant who quits for health reasons must communicate the health problems to the employer so that the employer may attempt to accommodate the problem. Lee Hospital, 637 A.2d at 698-699.
Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more. The availability of an employment position, the duties expected to be performed by one serving in that capacity are managerial judgments over which the employee has no control. As long as the employee is available where a reasonable
accommodation is made by the employer, that is not inimicable to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act [Law].Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 130-131, 451 A.2d 1353, 1356 (1982).
To the extent Claimant argues that he quit his job because of health reasons, he failed to meet his burden. Lee Hospital. Claimant explained his decision to quit his job:
[W]hen I decided in April at the end, I just couldn't do it health-wise. Couldn't put myself back in the conditions of working . . . I sent a letter and . . . mentally, I broke down because of being wrote [sic] up, the change [as] far as safety - I had a safety record and performance . . . and . . . then . . . somebody injured me, that I didn't cause the injury, and I go from a safety thing to a lesser safety thing. And then you're going to be six months on probation, and if anything happens during that six months, it might go a year. But that was leading up - that was just more of it leading up to it. But health-wise when my blood pressure and my 190/140 and stress and everything else.N.T. at 7.
Claimant explained that his blood pressure decreased when he was on medical leave. When he considered returning to work, he explained, "It [his blood pressure] was just going to go right back up again . . . there's - you can't win with - when they write . . . 28 write ups out of 32 people in one day because they was [sic] going to write people up and you find out about the rules and regulations when they make the rules and regulations up." N.T. at 11-12.
However, Zajac testified that while Employer was aware that Claimant was on medical leave for high blood pressure, Claimant never made her aware of the issues he raised at the hearing concerning the alleged relationship between work-related stress and his high blood pressure and his general dissatisfaction with working conditions. N.T. at 23, 25. The WCJ found Zajac credible.
Regardless of whether Claimant provided competent evidence that his health problems were caused by work-related stress, nothing in the record indicates that Employer was made aware that Claimant's condition was caused by work-related stress. As a result, Claimant failed to shoulder his burden. To the extent that Claimant does not argue that he quit his job because of health reasons but that the finding was made in error, any error was harmless.
Claimant next argues that the Board erred when it issued Finding of Fact No. 10 in which it stated that Claimant was not able and available for work during the week at issue. The week at issue was the week ending April 16, 2011.
Although Claimant was on a medical leave of absence that was scheduled to last until May 1, 2011, Claimant filed for unemployment compensation benefits on April 23, 2011. --------
Section 401(d)(1) of the Law, 43 P.S. §801(d)(1), provides:
Compensation shall be payable to any employe who is or becomes unemployed and who
. . . .
(d)(1) Is able to work and available for suitable work: Provided, That no otherwise eligible claimant shall be denied benefits for any week because he is in training
with the approval of the secretary nor shall any such individual be denied benefits with respect to any week in which he is in training with the approval of the secretary by reason of the application of the provisions of this subsection relating to availability for work or the provisions of section 402(a) of this act relating to failure to apply for or a refusal to accept suitable work.
Whether a claimant is able and available for suitable work is a question of fact unless the restriction on job availability is so untenable and illustrative of a lack of good faith so as to disqualify a claimant as a matter of law. Proof that a claimant has registered with the unemployment compensation authorities creates a presumption of availability for work. The presumption may be rebutted by evidence that a claimant's physical condition limits the type of work a claimant is able to accept or by evidence that he has voluntarily placed other restrictions on the type of job he is willing to accept. If a claimant is able to do some type of work even though he is disabled and there is a reasonable opportunity to secure such a position, then the claimant is attached to the labor force. Hower and Son v. Unemployment Compensation Board of Review, 509 A.2d 1383 (Pa. Cmwlth. 1986).
Generally, the determination of whether a claimant is available for work is a question of fact for the Board, which this Court is bound to affirm if the Board's determination of the factual issue is supported by substantial evidence. Pennsylvania Electric Company v. Unemployment Compensation Board of Review, 450 A.2d 779 (Pa. Cmwlth. 1982).
Here, Zajac testified that Claimant was on a medical leave of absence which commenced on March 15, 2011. Zajac expected Claimant to return to work after May 1, 2011. In fact, Claimant submitted a note from his physician which indicated that he was unable to work from March 16, 2011, through May 1, 2011. This evidence supports the finding that Claimant was unable and unavailable for work for the week ending April 16, 2011, due to his physical limitations.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of June, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge