Karwowski v. UCBR – Sept. 12, 2013 –
Cmwlth. Court
The
Court (2-1) reversed the UCBR and held that a claimant with a 240 round-trip
daily commute, which resulted in health problems, had good cause to quit the
job. Both parties attended the referee
hearing, but only the Claimant testified.
The job
was in North Carolina and paid 1/3 of what he made from his last job, which he
had lost a year before. He worked for about
three weeks.
Before
starting the job, Claimant searched for an apartment closer to work but found
the cost range to be too expensive for him to pay, in light of the fact that
Claimant was trying to maintain his current residence.) After starting the job,
Claimant continued to look for an apartment and also sought help from
Employer’s human resources department. For
two weeks, Claimant completed the five-hour, round-trip commute. Claimant testified that he suffered severe
anxiety and stress because of the commute. He was vomiting at work, and his
family grew concerned about his safety. The travelling adversely impacted his sleep,
and several times he nearly fell asleep on the drive home. Claimant voluntarily
quit, telling Employer that he was taking his career in a different direction.
Capricious disregard
Where,
as here, the burdened party “is the only party to present evidence and did not
prevail before the UCBR, our scope of review on appeal is whether the UCBR
committed an error of law or capriciously disregarded the evidence.” See Eby
v. Unemployment Compensation Board of Review, 629 A.2d 176, 178 (Pa.
Cmwlth. 1993). While this formulation of the capricious disregard standard was
subsumed by the Supreme Court decision in Leon E. Wintermyer, Inc. v.
Workers’ Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478
(2002), it still remains viable. Hinkle v. City of Philadelphia, 881
A.2d 22, 27 n.9 (Pa. Cmwlth. 2005) (providing a detailed description of the
proper application of the capricious disregard standard post-Wintermyer).
Where only one party presents evidence, as is the case here, the failure to
credit such evidence is a per se violation of that standard.
Findings of fact
not supported by substantial evidence
Claimant challenges the UCBR’s Finding of Fact Number 6,
which states: “The claimant spoke with a human resources representative, who
referred the claimant to another employee who had found an apartment near the
employer’s site, at a reasonable price.” Claimant argues that no evidence supports the
UCBR’s introduction of the “at a reasonable price” language. We agree. Claimant testified that he could not find an
affordable apartment. There was no other evidence about the cost of nearby
apartments. Thus, we agree with Claimant that this finding is not supported by
any evidence, and we disregard it insofar as it implies that Claimant could
afford a nearby apartment.
Claimant next challenges the UCBR’s Finding of Fact Number 7,
which states: “The claimant did not consider sharing an apartment with a
roommate.” (UCBR’s Findings of Fact, No. 7.) Nothing in the record indicates
that Claimant did or did not consider sharing an apartment with a roommate.
Moreover, nothing requires an employee to consider sharing an apartment with a
roommate. Thus, we agree with Claimant that this finding is not supported by
any evidence, and we disregard it.
Claimant also challenges the UCBR’s Finding of Fact of Number
8, which states: “The claimant did not speak to his direct supervisor about the
transportation problem.” (UCBR’s Findings of Fact, No. 8.) However, Claimant
discussed the situation with his direct supervisor in order to modify his work
schedule. (N.T. Ex. 5 at 2.) Employer presented no contradictory evidence at
the hearing. Therefore, we agree that no evidence supports this finding, and we
disregard it.
No reasons given
for disregarding unchallenged finding by referee
The UCBR also disregarded the referee’s Finding of Fact
Number 6, which stated: “The claimant contacted 3 realtors for information on
apartments.” “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, 460, 453
A.2d 960, 962 (1982). Claimant unambiguously testified that he contacted three
real estate agents. Employer presented no contradictory evidence. If the UCBR
did not credit or believe Claimant’s testimony, it needed to provide an
explanation for disregarding the testimony to avoid abusing its discretion
under the capricious disregard standard. See Hinkle, 881 A.2d at 27.
Moreover, this finding of fact is not trivial or irrelevant because it
highlights the efforts that Claimant made to find affordable housing near the
jobsite. Thus, the UCBR erred in disregarding this finding without stating its
reason for doing so, and we will consider this finding in determining whether
Claimant had a necessitous and compelling reasons for voluntarily quitting.
“To be eligible for unemployment benefits under Section
402(b), a claimant has the burden of establishing a necessitous and compelling
reason for voluntarily terminating his or her employment.” ….A claimant must
demonstrate circumstances “‘which produce pressure to terminate employment that
is both real and substantial, and which would compel a reasonable person under
the circumstances to act in the same manner.’” ……Treon, 499 Pa. at 462,
453 A.2d at 963 (citation omitted) (finding that commute of over 300 miles
created real and substantial pressure to compel a reasonable person to
terminate his employment). “The crux of an inquiry in determining whether a
claimant had cause of a necessitous and compelling nature for leaving his or
her work is whether the offered work was suitable.” Speck, 680 A.2d at
29-30. Section 4(t) of the Law lists factors to consider
in determining the suitability of work including: “the distance of the
available work from his residence” and “the permanency of his residence.” 43
P.S. §753(t).
Change of
conditions not related to employer action
In Shaw v. UCBR,, 406 A.2d 608, 609 (Pa. Cmwlth.
1979), an employee accepted a position 100 miles away from his residence,
knowing that the commute would take two hours to complete. The employee worked
at the position for three months before resigning. This court held that the difficult commute
did not constitute a necessitous and compelling cause….Here, because Claimant
accepted the position knowing of the arduous commute, we do not view the relatively
subtle, factual differences raised by Claimant as distinctions making Shaw inapplicable.
Thus, because Claimant accepted the position with Employer, a presumption
exists that the position was suitable.
However, a claimant may successfully assert that employment
became unsuitable due to conditions he was not aware of when he took the job. …This
court in Shaw noted that “to demonstrate his entitlement to benefits, [a
claimant] must overcome that admission by showing a change in his job
conditions or a deception by the employer, making him unaware, when he entered
the employment relationship, of conditions which he later alleges to be
onerous.” ….In other words, the presumption of suitability is rebuttable.
“Medical problems can constitute cause of a necessitous and
compelling nature.” Wheelock Hatchery, Inc. v. UCBR, 648 A.2d 103, 107
(Pa. Cmwlth. 1994) (finding necessitous and compelling cause where an employee
was denied a modified schedule needed to meet requirements of his substance
abuse rehabilitation). “To establish health as a compelling reason for quitting
a job a claimant must: (1) offer competent testimony that adequate health
reasons existed to justify termination; (2) have informed the employer of the
health problem; and (3) be available, where a reasonable accommodation is made
by the employer, for work which is not inimical to his health.” Ridley
School District v. UCBR 637 A.2d 749, 752 (Pa. Cmwlth. 1994)
Here, Claimant testified that after taking the job he
experienced significant health problems as a result of the laborious commute. ….Employer
did not contest this testimony. When Claimant accepted the job, he had been
unemployed for over a year, and he was desperate enough to take a job paying
him one-third of his previous salary. ….While Claimant knew that the commute
would be difficult, he could not foresee that significant health complications
would arise.
Claimant informed Employer of his
issues, speaking to his direct supervisor and the human resources department.
Claimant made significant efforts to turn an impossibly difficult situation
into a manageable one by revising his work schedule, looking into transferring
to a branch office, researching carpooling, and searching for affordable
apartments. When these efforts proved unsuccessful, necessarily, under the
circumstances, Claimant made a reasonable decision to resign due to strains on
his physical and mental health.
We recognize that Employer did not modify the conditions of
Claimant’s employment or deceive him; however, Claimant did not anticipate the
stress and anxiety that the long daily commute would cause him. Denying
Claimant UC benefits only because he initially accepted the job would penalize
him for making a reasonable effort in good faith to seek out and maintain new
employment. Had Claimant declined the position, he would still be receiving UC
benefits from his previous employer.7
7 In
interpreting the Law, we recall that “an unemployed worker in a covered
employment is entitled to benefits, and loses them only when he falls under the
condemnation of a disqualifying provision of the [Law], fairly, liberally,
and broadly interpreted.” Long, 475 A.2d at 192 (citation omitted).
Accordingly, we reverse.
