Tuesday, May 24, 2011

UC- appeal - Board reversal of referee overturned - Treon, et al

Dommes v. UCBR - May 24, 2011 - unpublished memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1590CD10_5-24-11.pdf




Claimant quit his job because of work-related stress and anxiety caused by harrassment by fellow employees. Claimant presented letters from a psychologist and a physician at the referee hearing documenting his claims. The letter from a licensed psychologist recommended that Claimant not return to work for Employer, stating that, if he did, it “would be done at the jeopardy of his mental and physical health.” The letter Claimant’s physician also recommended that Claimant “cease work under the current conditions in order to aid in his medical and psychological care."



Based on this evidence, the referee found that:



(1) “[C]laimant became upset and began manifesting physical signs of stress and anxiety, such as nausea and sweating, and consulted with his physician,”; (2) “[C]aimant’s physician advised the claimant to quit his employment with [Employer],” and (3) “[n]o other alternatives were available to [Claimant] prior to quitting,” The referee stated as follows: Based upon the testimony provided and the competent evidence contained in the record, the referee finds and concludes that the claimant had good cause for quitting due to the stress and anxiety which was manifesting itself through nausea and sweating. Additionally, the referee resolves issues of credibility in favor of the claimant.



Employer appealed to the UCBR, which reversed. In doing so, the UCBR “discredit[ed] [Claimant’s] testimony, as well as the opinion of his doctor, that [Claimant] was compelled to quit his employment due to health issues.” The UCBR gave no reason for its disregard of the referee’s contrary finding.



Claimant argues that the UCBR erred in disregarding the referee’s finding that Claimant needed to end his employment for health reasons without stating its reasons for doing so. We agree.



Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the UCBR as the fact-finder, the UCBR is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. UCBR, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). “The [UCBR] may not . . .simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon v. UCBR, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982). Where the UCBR does so, the remedy is to reinstate the finding of the referee. Id. at 461, 453 A.2d at 962-63. Here, the UCBR disregarded the referee’s finding that Claimant needed to quit his job with Employer for health reasons. The finding is supported by consistent and competent evidence, uncontradicted in the record, and the UCBR offered no reason for its disregard of that finding. Thus, under Treon, the referee’s finding is reinstated.



Claimant next argues that the UCBR erred in concluding that he lacked a necessitous and compelling reason to quit. We agree. Health problems may amount to a compelling reason to quit when the claimant offers competent testimony that adequate health reasons existed to justify the voluntary termination, that the claimant informed the employer of the health problems, and that the claimant remained available to work if employer made reasonable accommodations. Genetin v. UCBR, 499 Pa. 125, 130-131, 451 A.2d 1353, 1356 (1982). Once the employee communicates his health problems to the employer, he can do no more. Id. at 131, 451 A.2d at 1356. The employer is responsible for contacting the employee and offering him suitable work; to insist that the employee initiate a quest for an alternative position would require a meaningless ritual. Id. If the employee declines such work, the employee will be ineligible for benefits. Id. at 132, 451 A.2d at 1356. Here, Claimant offered competent evidence that he was suffering from health problems as a result of the verbal abuse he suffered at work. Claimant informed Employer about the verbal abuse and its effect on his health in the fourpage complaint he gave to Employer two weeks before Claimant quit. Employer never addressed the complaint, never contacted Claimant regarding an investigation and never offered Claimant suitable employment.



Accordingly, we reverse that portion of the UCBR’s order denying benefits.



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The claimant's counsel is a private attorney from Scranton, Chris Cullen, who has filed a motion to publish, along with that of David Hill of PLA. Atty. Cullen notes that the Board is asking the Supreme Court to review and reverse.



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

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