Wednesday, July 13, 2011

UC - voluntary quit - health reasons

Valeriano v. UCBR - July 13, 2011 - unpublished memorandum opinion

Claimant had a necessitous and compelling health reason to leave her employment, where

- her physician directed her to stay out of work she reinjured her leg while working on a light-duty position.

- Claimant informed Employer of her inability to return to work and provided doctor's notes and other supporting medical documentation

- She was able and available to perform sedentary work within her physical restrictions

- She resigned after Employer denied her workers' compensation claim and did not respond for three weeks to her request for FMLA disability leave.

These facts found by the Board are sufficient to establish a necessitous and compelling health reason for terminating her employment under Ridley Sch. Dist v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994).

Because Claimant terminated her employment due to a necessitous and compelling health reason, not to avoid an imminent discharge, the Board's finding that Employer did not tell her that her job was in jeopardy is irrelevant to her eligibility for benefits under Section 402(b) of the Law. Compare Pa. Liquor Control Bd. v. UCBR, 648 A.2d 124 (Pa. Cmwlth. 1994) (claimant's separation from employment was a discharge for willful misconduct, not a voluntary quit, because she resigned in order to avoid an imminent discharge for a disciplinary reason).

Reasonable effort to preserve employment - The record also establishes that Claimant made a reasonable effort to preserve her employment. In Genetin v. UCBR, 499 Pa. 125, 130-31, 451 A.2d 1353, 1356 (1982), the Pennsylvania Supreme Court held: 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 a position, the duties expected to be performed by one serving in that capacity, and the desirability of that individual for service 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 inimical to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. … To insist upon the employee's initiating the quest for an alternative position, would require a meaningless ritual that does not further the objectives of the Act.

In this matter, Employer was aware of Claimant's health problems. Claimant was available and able to perform suitable work within her physical restrictions, as the Board found. Employer did not dispute that Claimant inquired about alternative positions and applied for one. Employer, however, did not offer her any suitable work and did not even respond to her letter requesting disability leave before she resigned. Claimant’s undisputed testimony shows that she visited the Administration office several times and provided all the requested documentation. She testified: "I kept asking Is there anything else you need? Is there anything else you need? And the answer was no." N.T. at 20


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.