CARROLL v. UN. COMP. BD. of REV., 69 Pa. Commw. 62 (1982)

450 A.2d 280

Richard Carroll, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.
September 14, 1982.

Unemployment compensation — Voluntary termination of employment — Necessitous and compelling cause — Health — Physicians’ statements.

1. In order to sustain a determination of cause of a necessitous and compelling nature justifying a voluntary termination of employment for health reasons, an unemployment compensation claimant must introduce competent testimony that at the time of termination adequate health reasons existed to justify termination, that he informed the employer of the health problems, and that he specifically requested that the employer transfer him to a more suitable position. [63]

2. In an unemployment compensation case physicians’ statements obtained after a voluntary termination of employment are of little evidentiary value in showing a necessitous and compelling cause based on health problems unless the statements adequately explain and support the health reasons as they existed on the date of termination. [64]

Submitted on briefs to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.

Appeal, No. 1992 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Richard L. Carroll, No. B-197475.

Page 63

Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Daniel L. Carn, Carn Vaughn, for petitioner.

Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

OPINION BY JUDGE MacPHAIL, September 14, 1982:

Richard Carroll (Claimant) brings this appeal from a determination of the Unemployment Compensation Board of Review (Board) which denied Claimant unemployment compensation benefits based on a determination that Claimant had voluntarily terminated his employment without cause of a necessitous and compelling nature. Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b).

Claimant’s primary contention is that he justifiably terminated his employment for reasons of health.[1] In order to sustain a determination of cause of a necessitous and compelling nature justifying a voluntary termination based upon health, a claimant must (1) introduce competent testimony that at the time of termination adequate health reasons existed to justify termination, (2) inform the employer of the health problems, and (3) specifically request the employer to transfer him to a more suitable position. Deiss v.

Page 64

Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). The Board here found that the Claimant failed to meet his burden[2] of proving either the first or third requirements of Deiss.

We have carefully examined the record in this case and have failed to find any corroborating medical evidence, either prior to or after termination, which would support Claimant’s contention that at the time of termination his health precluded him from performing his assigned duties. See Coyle v. Unemployment Compensation Board of Review, 56 Pa. Commw. 170, 174, 424 A.2d 588, 590 (1981). The Claimant terminated his employment in August of 1980. He admits that he provided his employer with no evidence prior to termination from his physicians concerning his physical health. The medical evidence offered at the referee’s hearing in the form of written reports from our four physicians falls short of meeting the test we first enunciated in Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commw. 597, 317 A.2d 332
(1974) that physicians’ statements obtained after the termination of employment are of little evidentiary value unless the statements adequately explain and support the health reasons as they existed on the date of termination. In the instant case none of the reports admitted into evidence refer in any manner to Claimant’s condition at the time of termination.[3] Thus, Claimant has failed to meet the first condition of Deiss and his claim for benefits on medical grounds must fail.[4]

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We have examined Claimant’s other two contentions and find them to be without merit.[5] We shall therefore affirm the order of the Board.

ORDER
The order of the Unemployment Compensation Board of Review, Decision No. B-197475, dated July 21, 1981, is hereby affirmed.

[1] Hearing and breathing problems, which he contended would be adversely affected in an environment of welding, grinding, spray painting or loud noises, or as Claimant referred to it, “inside work.”

[2] Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

[3] The earliest date mentioned in any of the medical reports is November 3, 1980.

[4] See Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commw. 302, 305, 426 A.2d 719, 721 (1981). We would also agree with the Board that Claimant failed to request a transfer and do not agree with Claimant that the record shows that such a request was unnecessary or would have been futile. Thus, Claimant also failed to meet the third condition o Deiss.

[5] Claimant has also argued that the change to inside work, apparently on the date of termination, was in retaliation for complaints Claimant made about wages for work as an outside laborer, or in the alternative that such change in working conditions (from outside to inside) was adverse and material, thereby providing cause of a necessitous and compelling nature for quitting. We need not reach either of these issues since the Board found that Claimant’s reason for quitting was his health.