Wivell v. Unemployment Compensation Board of Review

673 A.2d 439, 1996 Pa. Commw. LEXIS 105
CourtCommonwealth Court of Pennsylvania
DecidedMarch 19, 1996
StatusPublished
Cited by2 cases

This text of 673 A.2d 439 (Wivell v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 1996 Pa. Commw. LEXIS 105 (Pa. Ct. App. 1996).

Opinion

COLINS, President Judge.

Carol A. Wivell (Wivell) petitions for review of the July 31,1995 order of the Unemployment Compensation Board of Review (Board) reversing a referee’s decision and denying her benefits.

Wivell was employed as a supportive housing associate by Residential Care Services, Inc. (Employer) for approximately two months, with her last date of work being April 18, 1995. Soon after being hired, Wi-vell began to complain of sore throats, headaches, and sinus problems that she attributed to cigarette smoke at her place of employment.

The record indicates that Wivell informed her supervisor of the foregoing physical ailments and that she believed they were caused by the clients’ and staffs cigarette smoke. Wivell’s job responsibilities included attending a bingo function where extensive smoking took place and working with two clients who smoked heavily. At Wivell’s request, Employer no longer scheduled her for the bingo function or to work with the chain-smoking clients. Additionally, Wivell expressed problems with attending weekly staff meetings because of smoking by both her supervisor and co-employees.

Wivell’s physical complaints continued and she consulted a physician who treated her with a prescription medication. Employer maintained a non-smoking facility, but before Wivell could be transferred there for medical reasons, Employer required her to obtain a physician’s note addressing her smoke-related health problems. Pending Employer’s receipt of such a note, Wivell was reassigned to her original duties and clients. The record further indicates that although Wivell asked her physician for the note, she was told the doctor would feel uncomfortable providing it because he did not have a record of Wivell’s recurring problems. Wivell, who had worked two of the three months necessary before obtaining health insurance through Employer, indicated she believed she would have to undergo numerous, costly allergy tests in order to obtain the required note. There is no indication in the record, however, that Wivell’s physician told her that allergy testing was required to substantiate her smoke-related medical complaints.

According to the findings of fact, Wivell informed Employer that her doctor felt uncomfortable about providing the note, but did not advise Employer that she could not afford to see a physician, but rather that she was unable to get an appointment without having health insurance. Wivell grew increasingly dissatisfied with her working conditions and with Employer’s requirement that she provide the medical note prior to obtaining a transfer, and she voluntarily quit her job.

The Job Center issued a determination granting Wivell benefits, from which decision Employer appealed. After a hearing at which Wivell and an Employer representative appeared and testified, the referee rendered a decision affirming the Job Center’s determination. Employer appealed to the Board, which on July 31, 1995, reversed the referee’s decision and denied benefits on the basis that Wivell had not established a necessitous and compelling reason to quit her job, [441]*441pursuant to Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).1 This petition for review followed.

Our scope of review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential facts are not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 161 Pa.Cmwlth. 464, 637 A.2d 695 (1994).

On appeal, Wivell argues that the Board erred in reversing the referee and that she did present reasons of a necessitous and compelling nature for leaving her job. In this regard, Wivell contends that the Board impermissibly held her to a higher than customary standard in finding Employer’s requirement that she produce a physician’s note to be reasonable. Relying on Judd v. Unemployment Compensation Board of Review, 91 Pa.Cmwlth. 372, 496 A.2d 1377, 1379 (1985), Wivell contends that a claimant need not necessarily “present expert medical evidence in order to establish ... compelling medical reasons for terminating ... employment, but instead may establish that fact by any competent evidence such as claimant’s own testimony and/or documentary evidence.” Finally, Wivell maintains that once she informed Employer about her smoke-related health problems as interfering with her regularly assigned duties, the burden of proof was no longer hers. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982).

The problematic issue of voluntary quit was addressed in Lechner v. Unemployment Compensation Board of Review, 163 Pa.Cmwlth. 111, 639 A.2d 1317 (1994), which set forth the following guidelines:

A claimant who voluntarily quits a job bears the burden of proving that the termination was caused by reasons of a necessitous and compelling nature. Quinn, Gent, Buseck & Leemhuis, Inc. v. Unemployment Compensation Board of Review, 147 Pa.Commonwealth Ct. 141, 606 A.2d 1300 (1992); .... Whether a claimant had cause of a necessitous and compelling nature to quit a job is a conclusion of law based upon the underlying findings of fact and is reviewable by this Court.

Id., 639 A.2d at 1319. With regard to the present case, in determining whether the Board erred in finding that Wivell failed to meet the burden of proving necessitous and compelling reasons for leaving her job with Employer, we recognize that

[t]o meet that burden, a claimant must show that cause of a necessitous and compelling nature results from circumstances which produce pressure, both real and substantial, to terminate one’s employment and which would compel a reasonable person under the circumstances to act in the same manner.... Further, this Court must also evaluate Claimant’s behavior to decide whether she acted reasonably under the circumstances.

Quinn, Gent, Buseck and Leemhuis, Inc. v. Unemployment Compensation Board of Review, 147 Pa.Cmwlth. 141, 606 A.2d 1300, 1302 (1992). Applying the foregoing parameters to the case sub judice, we find that Wivell acted impulsively, rather than reasonably, in voluntarily quitting her job with only one more month to work before obtaining health insurance through Employer.

In addition to her failure to act in a reasonable manner, Wivell did not adequately meet the burden of establishing that medical problems created a necessitous and compelling reason for her to leave her job.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Prince v. Unemployment Compensation Board of Review
832 A.2d 583 (Commonwealth Court of Pennsylvania, 2003)
Nolan v. Unemployment Compensation Board of Review
797 A.2d 1042 (Commonwealth Court of Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
673 A.2d 439, 1996 Pa. Commw. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wivell-v-unemployment-compensation-board-of-review-pacommwct-1996.