Opinion
August 2, 1982.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Health reasons.
1. An employe asserting that health reasons constituted a necessitous and compelling cause for her voluntary termination of employment such that she retained eligibility for unemployment compensation benefits must prove by documentation that a physician advised the termination, must prove that she notified her employer of the problem and must prove that she specifically requested a transfer to a more suitable position, and a failure to establish such notice to the employer or request for lighter work precludes her recovery of benefits although lighter work may not have been available. [103]
Submitted on briefs May 7, 1982, to Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 290 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Marlene Green, No. B-191374.
Application with the Office 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.
Mark S. Sedley, for petitioner.
Karen Durkin, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.
Marlene Green (claimant) asserts that she should not have been denied benefits by the Unemployment Compensation Board of Review (Board) which found that she voluntarily terminated her employment without cause of a necessitous and compelling nature.
Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The claimant was last employed as a hostess/filler by Dunkin Donuts. She had informed her employer at the time of her hire on November 1, 1979, that she had had back problems but felt that they would not hinder her in her duties. On August 30, 1980, she voluntarily terminated her employment due to back pains from lifting trays of doughnuts but did not give her employer any reason for quitting.
The record indicates that she did not request a leave of absence before she left nor did she submit before or after her leaving, a doctor's certificate.
It is well-settled that an employe who voluntarily terminates employment for health reasons must "(1) introduce documentation that a physician advised claimant to terminate prior to termination . . . (2) inform the employer of the health problem . . . and (3) specifically request the employer to transfer [her] to a more suitable position. . . ." Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 554, 381 A.2d 132, 135 (1977) (citations omitted). Moreover, we have recognized that a "[c]laimant's failure to meet any one of those three conditions will bar her claim for unemployment compensation benefits." Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commw. 302, 305, 426 A.2d 719, 721 (1981) (emphasis added).
Our review of the record here indicates that the claimant failed to notify her employer that her back problem was aggravated by her duties prior to her voluntary termination, and we must specifically reject her argument that her statement to her employer at her initial hiring interview meets the second condition required in Deiss. Moreover, although her employer admitted that lighter work was unavailable and that a request for such would have been "futile", we must nevertheless conclude that the claimant has failed to satisfy the third condition in Deiss because the record reveals she did not request a leave of absence or establish that such request would have been futile. It is clear, therefore, that she did not make "every effort . . . to sustain the employer-employe relationship." Wenrich, 34 Pa. Commw. at 189, 382 A.2d at 1304.
See Deiss, 475 Pa. at 554 n. 3, 381 A.2d at 135 n. 3; Baldassano v. Unemployment Compensation Board of Review, 34 Pa. Commw. 457, 383 A.2d 988 (1978).
The third condition in Deiss has been interpreted to require a claimant to establish "(3) that every effort was made to sustain the employer-employe relationship." Wenrich v. Unemployment Compensation Board of Review, 34 Pa. Commw. 186, 189, 382 A.2d 1303, 1304 (1978). Accordingly, a request for a leave of absence, or proof that such request would have been futile, has been held to be a corollary to the third condition (request for a more suitable position) in Deiss. See e.g., McDonald v. Unemployment Compensation Board of Review, 48 Pa. Commw. 16, 408 A.2d 1181 (1979); Barni v. Unemployment Compensation Board of Review, 33 Pa. Commw. 588, 382 A.2d 505 (1978).
A claimant must show by competent evidence that a request for a leave of absence would have been futile in order to be excused from meeting the third condition in Deiss. McDonald.
Inasmuch as this claimant has satisfied less than all of the conditions set forth in Deiss, we will therefore affirm the order of the Board. Ruckstuhl.
The Board found that the claimant failed to produce any medical evidence to justify her quitting. Our review of the record indicates that there was no medical verification here other than her own uncorroborated statements that her physician advised her to quit. The Board, however, in its brief states that "the Board did not find claimant's medical excuse insufficient under the [first] requirement of Deiss." We have held that where, as here, a claimant who does not present any medical verification of her condition either prior to or after quitting other than her own uncorroborated statements, has not presented sufficient competent medical evidence under Deiss' first requirement. See Donaldson v. Unemployment Compensation Board of Review, ___ Pa. Commonwealth Ct. ___, 434 A.2d 912 (1981); Coyle v. Unemployment Compensation Board of Review, 56 Pa. Commw. 170, 424 A.2d 588 (1981) (claimant's testimony that physician recommended she quit was insufficient in the absence of a direct verification explaining or supporting the health reasons); Steffy v. Unemployment Compensation Board of Review, 51 Pa. Commw. 16, 413 A.2d 483 (1980).
ORDER
AND, NOW, this 2nd day of August, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.