Summary
In Ruckstuhl v. Commonwealth Unemployment Bd. of Review, 426 A.2d 719 (Pa.Commw. 1981), on the other hand, the court held that the claimant, who had a nicotine allergy, was not entitled to compensation after she resigned "for health reasons" allegedly generated by exposure to cigarette smoke.
Summary of this case from Branson v. District of Columbia Department of Employment ServicesOpinion
Argued February 2, 1981
March 4, 1981.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Burden of proof — Health problems — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Medical evidence — Conflicting evidence — Questions not properly raised below.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, unless she proves that such termination was for a cause of a necessitous and compelling nature. [305]
2. Mere exposure to cigarette smoke is not a necessitous and compelling cause for the voluntary termination of employment rendering such employe eligible for unemployment compensation benefits, but an employe asserting that such exposure or any other health problem necessitated termination must prove that at the time of termination a health problem existed justifying such action, that she informed the employer of that problem and that a request was made for a transfer to a more suitable position. [305]
3. In an unemployment compensation case where the party with the burden of proof did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. [305]
4. An applicant for unemployment compensation benefits who alleges that her voluntary termination of employment was for health reasons must adduce some medical evidence in support of the assertion that a medical condition justifying such action existed at the time of her termination. [305-6]
5. In an unemployment compensation case questions of evidentiary weight and the resolution of evidentiary conflicts are for the fact finder, not the reviewing court. [306]
6. Questions not properly raised below in an unemployment compensation proceeding will not be considered on appeal by the Commonwealth Court of Pennsylvania. [307]
Argued February 2, 1981, before Judges WILKINSON, JR., MacPHAIL and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 2390 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Elaine S. Ruckstuhl, No. B-177245.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jerome Balter, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
This is an appeal by Elaine S. Ruckstuhl (Claimant) from a decision of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits pursuant to Section 402(b)(1) 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), on the ground that Claimant had voluntarily terminated her employment without cause of a necessitous and compelling nature. We agree.
Claimant was last employed by Chilton Company (Employer) as a part-time market research telephone interviewer for a period of eight months ending on June 1, 1979. Claimant was allergic to nicotine and encountered breathing difficulties when exposed to excessive cigarette smoke. Claimant did work in an area where she was exposed to cigarette smoke. Claimant voluntarily terminated employment because, she contends, the smoke caused her to become ill and thus her leave of work was for cause of a necessitous and compelling nature.
Although it is now generally accepted that cigarette smoke may be harmful to smokers and nonsmokers alike, we cannot presume for unemployment compensation purposes that anyone exposed to cigarette smoke in one's work environment is so physically harmed that a voluntary termination of employment will be automatically justified and unemployment benefits granted. Thus, we must treat this case as any other that involves a voluntary termination for health reasons.
In voluntary termination cases, the burden is upon the employee to prove that he had necessitous and compelling reason for leaving his employment. Rinehart v. Unemployment Compensation Board of Review, 37 Pa. Commw. 15, 389 A.2d 243 (1978). To carry this burden, the employee who voluntarily terminates employment for compelling health reasons must meet the three requirements established by our Supreme Court in Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). Such a claimant must: "(1) offer competent testimony that at the time of her termination adequate health reasons existed to justify termination; (2) inform the employer of the health problem; and (3) specifically request the employer to transfer her to a more suitable position." (Emphasis added.) McQuiston v. Unemployment Compensation Board of Review, 37 Pa. Commw. 250, 253, 390 A.2d 317, 318 (1978). The Claimant's failure to meet any one of those three conditions will bar her claim for unemployment compensation benefits.
Where the party with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commw. 138, 409 A.2d 126 (1979).
Here, the Board found, inter alia, that Claimant failed to show that adequate health reasons existed to justify termination. Claimant is not required to prove that she was advised by her physician to quit, Pastorius v. Unemployment Compensation Board of Review, 35 Pa. Commw. 52, 384 A.2d 1039 (1978). However, Claimant must adduce some medical evidence to support her allegations. Rinehart, supra. The sole piece of medical evidence presented by Claimant below is a doctor's certificate dated more than a month after Claimant terminated employment. On the certificate is written:
The above [Elaine Ruckstuhl] has tobacco and nicotine allergy and is unable to work in such environment.
The fact that the certificate was obtained after Claimant's termination does not render it incompetent. Deiss, supra. The certificate must, however, relate to the Claimant's state of health at the time of her termination. It will be noted that the certificate quoted in its entirety above does not clarify what is meant by "such environment" nor does it sufficiently explain the effect of Claimant's work environment on her allergy. More importantly, there is nothing in the statement which relates to Claimant's condition at the time of termination. These deficiencies render the certificate wholly inadequate as medical evidence to support Claimant's burden of proof. See Bigley v. Unemployment Compensation Board of Review, 38 Pa. Commw. 569, 393 A.2d 1312 (1978). It is the Board's function, not ours, to weigh the evidence. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commw. 191, 415 A.2d 425 (1980).
Although Claimant testified that she complained to the Employer that she could not work where she was subject to cigarette smoke and that she had presented an "allergy report" to the Employer, the Employer's representative denied that any such communication had been made and that any such report had been delivered to the Employer. The Board resolved the conflicting testimony in favor of the Employer; it did not disregard it.
Because Claimant failed the Deiss test by failing to meet the first requirement, we need not discuss whether she fulfilled the other two requirements. Neither should we address Claimant's argument that violation of the Employer's duty to provide a safe and healthy workplace environment is justification for voluntary termination of employment, for this issue was not raised by Claimant below. "A party who proceeded before a Commonwealth agency . . . may not raise upon appeal any other question not raised before the agency. . . ." Administrative Agency Law, 2 Pa. C. S. § 703(a).
After a careful review of the record, we find that the Board did not disregard competent evidence in making its findings and conclusions. We hereby affirm the Board's decision to deny Claimant benefits.
ORDER
AND NOW, this 4th day of March, 1981, the order of the Unemployment Compensation Board of Review No. B-177245, dated October 31, 1979, denying benefits to Elaine S. Ruckstuhl is affirmed.