Opinion
No. 1714 C.D. 2012
06-07-2013
Sherry P. Wills, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, Sherry P. Wills, petitions pro se for review of the order of the Unemployment Compensation Board of Review (Board) determining that she was not ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), but ineligible for benefits under Section 401(d)(1) of the Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that an employee is ineligible for benefits when she voluntarily terminates her employment without cause of a necessitous and compelling nature.
43 P.S. § 801(d)(1). Section 401(d)(1) states, in relevant part, that "[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."
Petitioner worked for Cambria Care Center (Employer) as a housekeeper from January 1, 2009, through March 10, 2012. On March 10, 2012, Petitioner was suspended for three days. On March 14, 2012, Petitioner's physician diagnosed her as suffering from work-related stress and advised her to take a leave of absence from her job. Petitioner requested leave under the Family and Medical Leave Act (FMLA), which was approved by Employer. Petitioner's leave expired on June 5, 2012.
29 U.S.C. §§ 2601 - 2654.
Petitioner applied for unemployment compensation benefits for the waiting week ending March 17, 2012. The Unemployment Compensation Service Center issued a Notice of Determination finding Petitioner ineligible for benefits under Section 402(b) of the Law and eligible for benefits under Section 401(d)(1).
Petitioner appealed the Service Center's determination. On May 18, 2012, the referee held a hearing at which Petitioner testified and Employer was represented by Timothy New, director of environmental services. The issues before the referee were whether Petitioner was unemployed due to voluntarily leaving work by taking a leave of absence without cause of a necessitous or compelling nature and whether Petitioner was able and available for suitable work for the waiting week ending March 17, 2012. Petitioner testified that she was suspended for a work-rule infraction on March 10. She stated that on March 14, 2012, she went to her physician who diagnosed her as suffering from stress and recommended that she take a leave of absence. Petitioner testified that she suffered from stress because of the unfair treatment and discrimination she experienced at work. The referee asked Petitioner whether her physician had released her "for any duties other than saying you need to take time off because you were stressed." Certified Record (C.R.) at Item 8, Notes of Testimony at 6. Petitioner responded "no." Id. New testified that Employer approved Petitioner's request for leave and that Employer did not offer any accommodations because the medical file stated that she needed a leave of absence.
The referee determined that Petitioner was eligible for benefits under Section 401(d)(1) of the Law, but ineligible under Section 402(b). The referee denied benefits under Section 402(b) on the basis that Petitioner and/or her physician failed to present any modified-duty restrictions for Employer to determine whether or not it could make accommodations. The referee noted that the Commonwealth Court held an employee's statement that she was able to perform any work except for a particular employer could not establish supporting cause of a necessitous and compelling nature to commence a leave of absence. C.R. at Item 9. The referee concluded that Petitioner was eligible for benefits under Section 401(d)(1) of the Law as she was ready and available for work. Id.
An employee who quits her job for medical reasons bears the burden to demonstrate through competent and credible evidence the following: (1) health reasons of sufficient severity compelled the employee to quit; (2) the employee informed the employer of the health problems; and (3) the employee is able and available for work if the employer can make a reasonable accommodation. Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994).
Petitioner appealed to the Board. The Board concluded that Petitioner had demonstrated that her medical condition constituted a necessitous and compelling reason for taking a leave of absence. The Board stated that because Petitioner's physician solely advised a leave of absence, Employer had no way of providing an accommodation. C.R. at Item 11, Board Decision 2. The Board determined that Petitioner had met her burden under Section 402(b) of the Law. Id. The Board further determined that Petitioner had failed to establish that she was ready and available for work as required by Section 401(d)(1) of the Law. Id. The Board noted that Section 401(d)(1) is a week-by-week test, and that Petitioner should contact the Department if her medical condition should change and provide such information. This appeal followed.
Petitioner argues that the Board erred in concluding that she was ineligible for benefits under Section 401(d)(1) of the Law because she was not ready and available for work. Specifically, Petitioner asserts that she was available for suitable work in a different environment and made ongoing efforts to obtain alternate employment.
If a leave of absence is taken voluntarily, it must first be determined under Section 402(b) whether the employee voluntarily quit. Schuler v. Unemployment Comp. Bd. of Review, 487 A.2d 1066 (Pa. Cmwlth. 1985). If the employee left employment for necessitous and compelling reasons, then a determination follows on the employee's availability and ability to work under Section 401(d). Id. A claimant who registers for unemployment is presumed to be able and available for work. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 625, 437 A.2d 1213, 1216 (1982). This presumption is rebuttable by evidence that an employee's physical condition limits the type of work she is available to accept or that she has voluntarily placed other restrictions on the type of job she is willing to accept. Molnar v. Unemployment Comp. Bd. of Review, 397 A.2d 869, 870 (Pa. Cmwlth. 1979). If the presumption of availability is rebutted, the burden shifts to the employee to produce evidence that she is able to do some type of work and that there is a reasonable opportunity for securing such work. Id. The court must determine whether the employee has imposed conditions on her employment which so limit her availability as to effectively remove her from the labor market. Harwood v. Unemployment Comp. Bd. of Review, 531 A.2d 823, 826 (Pa. Cmwlth. 1987).
In this case, Petitioner established a presumption of availability for employment by registering for unemployment compensation benefits. We must determine whether this presumption has been rebutted. Petitioner provided Employer with a request for medical leave in which her physician stated that she required a leave of absence due to stress. Neither Petitioner nor her physician provided Employer with any suggested work accommodations. Further, on questioning by the referee, Petitioner admitted that her physician had not released her to work. Such evidence suggests that Petitioner was unable to work due to her medical condition. The presumption of availability was therefore rebutted. The burden then shifted to Petitioner to demonstrate that she was available for work. There is nothing admitted into the record which demonstrates that Petitioner was available for work. Thus, the Board did not err in determining that Petitioner was not able and available for work for the waiting week ending March 17, 2002.
Petitioner attached several pay stubs to her brief to demonstrate that she is available for work. Because the pay stubs are not part of the certified record of this case, we are unable to consider them for purposes of this appeal. Tener v. Unemployment Comp. Bd. of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990) (holding that "this Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal").
We note that the issue of whether an employee is able and available for work must be decided for each claim week, and if an employee is found to be unable to work or unavailable for work for one week, it does not preclude her from being found eligible for any other week. See Cicco v. Unemployment Comp. Bd. of Review, 432 A.2d 1162, 1166 (Pa. Cmwlth. 1981). This case concerns a single week of eligibility. Petitioner may seek a determination from the department regarding her eligibility for benefits for any other week she has been unemployed. --------
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of June, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge