Opinion
No. 835 C.D. 2013
01-15-2014
Robert F. Thomas, Sr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Robert F. Thomas, Sr. (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of the referee and denied him unemployment benefits. The Board determined Claimant was ineligible pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because he voluntarily terminated his employment without cause of a necessitous and compelling nature. Claimant asserts he was compelled to quit because of a medical condition, which he communicated to his employer, Sandwich Cat, Inc. (Employer). Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Claimant worked for Employer as a driver until his last day of work on January 9, 2012. In September 2012, Claimant applied for unemployment compensation benefits, which the local service center denied. Claimant appealed to the referee. At the hearing, Claimant and Alan Giannone, the president of the company (Employer's Witness), testified. Based on the testimony and other evidence presented, the referee determined that Claimant, although available for suitable work under Section 401(d)(1) of the Law, 43 P.S. §801(d)(1), as of September 2012, was ineligible for benefits under Section 402(b) of the Law because he terminated employment without a necessitous and compelling cause.
Claimant appealed to the Board, which adopted and incorporated the referee's findings and conclusions, which follow. In January 2012, Claimant experienced severe pain in his right shoulder and sought medical treatment. Claimant's doctor diagnosed a rotator cuff injury and nerve damage in Claimant's right shoulder. Claimant treated with physical therapy on a daily basis. In March 2012, Claimant underwent surgery for his right shoulder. From April until September 2012, Claimant continued with physical therapy. In September 2012, Claimant's doctor opined Claimant sustained a permanent disability and could not lift anything over 15 pounds. Significantly, Claimant did not communicate with his Employer after his last day of work on January 9, 2012. See Referee's Op., 1/28/13, Findings of Fact (F.F.) Nos. 1-8.
Although not reflected in the referee or Board findings, but evident in the record, Claimant suffered an earlier work injury, for which he sought workers' compensation. Reproduced Record at 29a. Before January 9, 2012, Claimant returned to work in a light duty position. Id. As a result of the January, 2012 injury, Claimant indicated that he would seek further workers' compensation benefits. Id.
Ultimately, the Board resolved the conflicts in testimony in favor of Employer. Specifically, the Board credited Employer's Witness's testimony that Claimant did not communicate his availability to return to work in September 2012 to Employer. Bd. Op., 4/24/13, at 1. Consequently, the Board concluded Claimant was ineligible for benefits under Section 402(b) of the Law and affirmed the referee's determination. From this decision, Claimant petitions for review.
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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010).
Claimant contends the Board erred in determining he did not establish a necessitous and compelling cause for leaving employment where he left work as a result of a disabling shoulder injury. Additionally, Claimant argues he communicated his availability for suitable work in September 2012 by filing for unemployment compensation benefits, but Employer did not provide him with suitable light-duty work.
The Board is the ultimate fact-finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded to the evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Id. Where substantial evidence supports the Board's findings, they are conclusive on appeal. Id. In addition, we must examine the testimony in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences from the testimony. Id.
The question of whether an employee has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). Section 402(b) of the Law, 43 P.S. §802(b), provides with emphasis added:
An employee shall be ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is 'employment' as defined in this act: Provided, That a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a necessitous and compelling nature....
A claimant's medical condition or health reason may create a necessitous and compelling cause to leave employment. Watkins v. Unemployment Comp. Bd. of Review, 65 A.3d 999 (Pa. Cmwlth. 2013). In cases where employment is terminated for medical reasons, the claimant must show through competent and credible evidence: (1) adequate health reasons existed to justify the voluntary termination; (2) the claimant communicated such reasons to the employer; and, (3) the claimant is available to work if reasonable accommodations can be made. Id. (citing Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695 (Pa. Cmwlth. 1994)); accord Genetin v. Unemployment Comp. Bd. of Review, 499 Pa. 125, 451 A.2d 1353 (1982); Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 879 A.2d 388 (Pa. Cmwlth. 2005); Gen. Bldg. Servs., Inc. v. Unemployment Comp. Bd. of Review, 591 A.2d 774 (Pa. Cmwlth. 1991). A claimant who quits for health reasons must notify the employer of his health limitations prior to separation from employment so that the employer is afforded the opportunity to accommodate the claimant by offering suitable work. Lee Hosp.
Once an employee meets this burden, the burden shifts to employer to establish it made a reasonable attempt to identify and propose possible accommodations for the employee's health problems. Watkins (citing Lee Hospital). If the employer does not provide suitable work, the employee's subsequent voluntary termination will be deemed the result of a necessitous and compelling cause. Gen. Bldg. Servs., Inc.
Additionally, to be eligible for benefits, a claimant must show he is able and available for suitable work under Section 401(d)(1) of the Law. Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237 (Pa. Cmwlth. 2011) (citing Molnar v. Unemployment Comp. Bd. of Review, 397 A.2d 869 (Pa. Cmwlth. 1979)). A claimant creates a presumption of availability by registering for work with the unemployment compensation authorities. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 437 A.2d 1213 (1981); Rohde. However, this presumption is rebuttable by evidence that a claimant's medical condition limits the type of work he is available to accept. Rohde.
Here, Claimant left work on January 9, 2012, due to a shoulder injury, for which he filed a workers' compensation claim, and did not return. Reproduced Record (R.R.) at 11a, 16a; Certified Record (C.R.), Item No. 6, Attachment 2C (Claimant's statement to unemployment compensation authorities). Between January and September 2012, Claimant underwent physical therapy and surgery for his shoulder. F.F. Nos. 4-6; R.R. at 11a-12a; C.R., Item No. 2 (Employer's Separation Information). In September 2012, Claimant's doctor concluded Claimant sustained a permanent disability and released Claimant to return to work with the restriction not to lift more than 15 pounds. F.F. No. 7; R.R. at 12a. Thereafter, Claimant filed for unemployment compensation benefits. See C.R., Item No. 3 (Claimant's Separation Information); R.R. at 12a.
To prove eligibility for unemployment compensation benefits under Section 402(b) of the Law, Claimant needed to show that he communicated his medical condition to Employer and gave Employer an opportunity to provide suitable work, consistent with his medical restrictions. See Watkins. Although Claimant testified he notified Employer of his medical condition and his ability to return to work in September 2012 with lifting restrictions, R.R. at 12a-13a, the Board rejected this testimony in favor of Employer's Witness's testimony that Claimant made no such communications. Bd. Op. at 1; see Referee Op. at 2. Such credibility determinations are within the sole province of the Board and will not be disturbed on appeal. See Ductmate.
In rejecting Claimant's testimony, the Board also noted a conflict between Claimant's testimony and an earlier statement he made in response to a query made by unemployment compensation authorities. See Referee Op. at 2. According to the Records of Oral Interviews, which took place in September 2012, Claimant stated he had no contact with Employer after January 9, 2012. C.R., Item No. 4, at 4. Specifically:
Q. You indicated that you did inform your employer of your work restrictions, but your employer indicated that you left on [January 9, 2012] and he never heard from you again, which is correct?
A. I did not contact him after [January 9, 2012] due to on that day he told me that his insurance would not cover me if I tried to file another worker's comp claim, which I did, therefore I did not feel that it was necessary for me to contact him again. I figured he would not want me to come back.
Based on the testimony of Employer's Witness, the Board found Claimant did not communicate with Employer since his last day of work on January 9, 2012. F.F. No. 8. Employer's Witness testified he did not see or hear from Claimant after his last day of work on January 9, 2012, until the day of the referee's hearing in January 2013. R.R. at 17a. Although Employer's Witness knew Claimant filed for workers' compensation, R.R. at 16a, and acknowledged a representative apprised him of the status of Claimant's workers' compensation claim, R.R. at 23a, Employer's Witness testified he was not aware of Claimant's condition from January through September 2012, R.R. at 22a, and never received any paperwork or documentation regarding Claimant's medical limitations, R.R. at 17a. While Claimant insists Employer knew of his medical limitations, Claimant admitted he did not provide Employer a letter from his doctor. R.R. at 15a.
Although Claimant's medical condition can certainly constitute a necessitous and compelling reason to terminate employment, by not communicating to Employer about his medical condition and ability to return to work with lifting restrictions, Claimant did not give Employer an opportunity to offer other suitable work before severing the employment relationship. Thus, Claimant did not meet the communication requirements of Watkins. We, therefore, conclude the Board did not err in determining Claimant did not establish a necessitous and compelling reason to quit under Section 402(b) of the Law.
Nevertheless, relying on Penn Hills School District and Rohde, Claimant contends he effectively communicated his availability for suitable work in September 2012 by filing for unemployment compensation benefits. However, Claimant's reliance on these cases for this proposition is misplaced.
Section 401(d)(1) of the Law provides, "[c]ompensation shall be payable to any employe who is or becomes unemployed, and who ... [i]s able to work and available for suitable work ...." 43 P.S. §801(d)(1) (emphasis added). Pursuant to Penn Hills and Rohde, a claimant's registration for unemployment compensation creates a presumption that he is able to work and available for "suitable work" under Section 401(d)(1) of the Law. However, these cases do not hold this presumption of availability for suitable work satisfies a claimant's duties to communicate his health problems and limitations prior to leaving employment under Section 402(b) of the Law. Cf. Rohde (the claimant notified his employer of his health condition and requested accommodations prior to quitting).
Here, the Board determined Claimant was available for suitable work and therefore eligible for benefits pursuant to Section 401(d)(1). See Referee Op. at 2-3. However, as discussed above, the Board disqualified Claimant from receiving benefits pursuant to Section 402(b) of the Law because he did not communicate to Employer his medical condition and restrictions prior to quitting. For purposes of Section 402(b), the communication with the employer must take place before the separation from employment. See Lee Hosp. Claimant's act of filing an application for unemployment compensation after quitting did not communicate Claimant's health limitations or afford Employer the opportunity to accommodate him with other suitable work prior to the separation from employment. See Watkins; Lee Hosp. Even though Claimant is available for suitable work, he is nonetheless ineligible for benefits, having quit without a compelling and necessitous reason.
For these reasons, we discern no error or abuse of discretion by the Board in ruling Claimant ineligible for unemployment compensation benefits under Section 402(b) of the Law because he did not communicate his health problems and limitations to Employer prior to quitting. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 15th day of January, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge
Id. (emphasis added).