               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Nicholson,                               :
                               Petitioner        :
                                                 :
                v.                               :   No. 994 C.D. 2015
                                                 :   Submitted: November 13, 2015
Unemployment Compensation                        :
Board of Review,                                 :
                    Respondent                   :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge2
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                     FILED: March 9, 2016

                Jeffrey Nicholson (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board), dated May 18, 2015,
affirming the decision of an unemployment compensation referee (Referee), which
denied Claimant unemployment compensation benefits. The Board concluded, in
part, that Claimant was ineligible for benefits under Section 402(b) of the
Unemployment Compensation Law (Law),3 relating to voluntary resignation
       1
        The case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
       2
           The case was reassigned to the authoring judge on January 29, 2016.
       3
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) of the Law provides that an employee shall be ineligible for
compensation for any week “[i]n which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.”
without cause of a necessitous and compelling nature, and assessed Claimant a
$296 non-fault overpayment. We now affirm.
               Claimant was employed by Supreme Mid-Atlantic Corp. (Employer)
as a fabrication manager, and he ceased working for Employer in November 2014.
Claimant applied for unemployment compensation benefits. The Altoona UC
Service Center (Service Center) issued a notice of determination, finding Claimant
to be eligible for benefits under Section 401(d)(1) of the Law4 but ineligible for
benefits under Section 402(b) of the Law.5 The Service Center also issued a notice
of determination of overpayment of benefit, finding Claimant had a non-fault
overpayment in the amount of $296.
               Claimant appealed, and a Referee conducted a hearing.                        Only
Claimant appeared at the hearing, unrepresented by counsel.                     Following the
hearing, the Referee issued a decision and order, affirming the Service Center’s
determination that Claimant was ineligible for benefits under Section 402(b) of the
Law and affirming the assessment of the non-fault overpayment against Claimant.
In so doing, the Referee made the following findings of fact:
               1.     The claimant was last employed as a full-time
                      fabrication manager by Supreme Mid-Atlantic
                      Corp. from November 29, 1999 until


       4
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(d)(1). Section 401(d)(1) provides, in part, that “[c]ompensation shall be payable to any
employe who is or becomes unemployed, and . . . [i]s able to work and available for suitable
work.”
       5
         Because the Referee found Claimant ineligible for benefits under Section 402(b) of the
Law, that provision prevails. See Pollard v. Unemployment Comp. Bd. of Review, 798 A.2d 815,
816 n.2 (Pa. Cmwlth. 2002) (“[W]here a claimant is ruled both eligible and ineligible for benefits
under different sections of the Law, the ineligible section prevails over the eligible section.”).



                                                2
                   November 25, 2014 at a final rate of pay of $21.84
                   per hour.
            2.     The claimant stopped working for the employer
                   due to a pre-existing work injury to his right
                   shoulder.
            3.     The claimant could have continued to work in a
                   light-duty capacity doing sedentary work.
            4.     The claimant’s treating physician indicted that he
                   needed to undergo surgery for the condition.
            5.     The claimant accepted a lump sum for settlement
                   [for] the workers’ compensation claim.
            6.     As part of the settlement agreement, the claimant
                   resigned his position.
            7.     The claimant filed an application for benefits
                   effective November 16, 2014, establishing a
                   weekly benefit rate of $294.
            8.     The claimant filed for and received $288 plus a $8
                   dependent allowance for the claim week ending
                   November 29, 2014.

(Certified Record (C.R.), Item No. 12.)

            In concluding that Claimant was ineligible for benefits, the Referee
reasoned:
                   In the present case, the record establishes that the
            claimant quit his position. The claimant’s resignation
            was part of a settlement of a Workers’ Compensation
            claim. The availability of a lump sum settlement of a
            Workers’ Compensation claim does not constitute a
            necessitous and compelling reason to permanently
            leave . . . one’s position. Therefore, the claimant has not
            established that he stopped working for the employer for
            cause of necessitous and compelling nature and benefits
            will be disallowed under Section 402(b) of the Law.

(Id.)



                                          3
              Claimant then appealed to the Board.               The Board, adopting and
incorporating the findings and conclusions of the Referee and relying upon Lee v.
Unemployment Compensation Board of Review, 33 A.3d 717 (Pa. Cmwlth. 2011),
affirmed the Referee’s decision. Claimant then petitioned this Court for review.
              On appeal,6 Claimant appears to argue that the Board’s finding of fact
that he resigned his employment is not supported by substantial evidence of
record.7 Claimant also appears to argue that the Board committed an error of law
when it analyzed his claim under Section 402(b) of the Law, relating to voluntary
resignation of employment without cause of a necessitous and compelling nature,
because it should have analyzed the matter under Section 402(e) of the Law,8
relating to discharge for willful misconduct.

       6
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704. Review for capricious disregard of material evidence is an appropriate component for
appellate review in every case in which such question is properly brought before the court. Leon
E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 (Pa. 2002).
       7
          Substantial evidence is defined as relevant evidence upon which a reasonable mind
could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740
(Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board’s
findings, this Court must examine the testimony in the light most favorable to the prevailing
party, giving that party the benefit of any inferences that can logically and reasonably be drawn
from the evidence. Id. A determination as to whether substantial evidence exists to support a
finding of fact can only be made upon examination of the record as a whole. Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s findings of
fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial
evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984).
       8
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e). Section 402(e) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to “willful misconduct
in connection with his work.”



                                               4
            With regard to whether substantial evidence supports the Board’s
finding Claimant resigned his employment, Claimant argues that the Board should
have found that Employer terminated his employment prior to his execution of the
settlement agreement. He maintains that he should be entitled to unemployment
compensation benefits because once his physician cleared him to return to work
from his injury in a light-duty capacity, Employer did not offer him a light-duty
position.   According to Claimant, this amounted to a termination of his
employment before Claimant signed the workers’ compensation settlement
agreement in November 2014. We disagree with Claimant’s position.
            First, the failure of an employer to offer work within an injured
employee’s work restrictions does not amount to a termination of employment. An
employee in this situation would continue to be eligible to receive workers’
compensation benefits from his employer, as an employee, unless and until the
employer establishes that Claimant’s injury is no longer disabling—i.e., that the
employer has offered the employee suitable work or that suitable work is available
elsewhere. See, e.g., Reichert v. Workers’ Comp. Appeal Bd. (Dollar Tree Stores),
80 A.3d 824, 829-30 (Pa. Cmwlth. 2013) (relating to petition to modify benefits).
            Second, Claimant’s contention is directly contradicted by the record
fact that he agreed to resign his position as a condition of his settlement of the
disputed workers’ compensation claim and signed a settlement agreement to that
effect:
            TO:          Supreme Industries
            FROM:        Jeffrey Nicholson
            DATE:        November 10, 2014




                                        5
                           I, Jeffrey Nicholson, voluntarily resign from
             my employment with Supreme Industries. I understand
             that this resignation will not affect any vested benefits
             that I may have including but not limited to my pension.
             Supreme Industries agrees not to contest my application
             for unemployment compensation benefits.

                                             /s/ Jeffrey Nicholson
(C.R., Item No. 2; Hr’g Tr. (C.R., Item No. 11) at 6.) Claimant’s promise to resign
from his position was clearly a material term and condition of the workers’
compensation settlement.     Claimant testified that Employer “wanted [him] to
resign” as part of the settlement agreement. (Hr.’g Tr. at 6.) It is duplicitous of
Claimant to now seek unemployment compensation benefits by arguing that he did
not resign but was actually fired before he made this promise to resign.
             For these reasons, we conclude that the Board’s finding is supported
by substantial evidence, including, but not limited to, Claimant’s signature on his
resignation memorandum to Employer.
             Next, we will address Claimant’s argument that the Board committed
an error of law when it analyzed his claim under Section 402(b) of the Law,
relating to voluntary resignation, because it should have analyzed the matter under
Section 402(e) of the Law, relating to willful misconduct. Whether a claimant’s
separation from employment is the result of a voluntary action or a discharge is a
question of law subject to this Court’s review and must be determined from a
totality of the facts surrounding the cessation of employment.             Key v.
Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). “[I]t
is a claimant’s burden to prove that his separation from employment was a
discharge.” Id. at 412. If a claimant proves that he was discharged, then the
burden to prove that the claimant was discharged for willful misconduct is on the


                                         6
employer. Id. at 412-13. If a claimant fails to prove that he was discharged, then
the claimant has the burden to prove necessitous and compelling reasons for
quitting. See Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d
662, 664 (Pa. Cmwlth. 1995). A finding of voluntary resignation is essentially
precluded unless the claimant has a conscious intention to leave his employment.
Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth.
2004).     On the other hand, to be interpreted as a discharge, the employer’s
language must possess the immediacy and finality of a firing.                       Charles v.
Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989).
              Here, the Board did not accept Claimant’s characterization of events.
Rather, the Board found that Claimant resigned his employment as part of his
settlement of a workers’ compensation claim, which demonstrates a conscious
intention to leave his employment. Thus, we conclude that the Board did not err in
analyzing Claimant’s claim as a voluntary resignation.
              Moreover, this Court has held that “when a claimant agrees to execute
a resignation/release in order to settle a workers’ compensation claim, the claimant
terminates [his] employment voluntarily without necessitous and compelling
cause.” Lee, 33 A.3d at 721. Here, as in Lee, the Board found as fact that
Claimant voluntarily quit his position with Employer as a condition of his
settlement of his workers’ compensation claim against Employer. 9 Under Lee,
then, Claimant is ineligible for unemployment compensation benefits.



       9
         Indeed, the Board notes that Claimant received a lump sum payment of $75,000 (less
attorneys’ fees) to settle the claim. Claimant testified that the settlement covered both medical
and wage loss benefits. (Hr’g Tr. (C.R., Item No. 11) at 8.)



                                               7
Accordingly, the order of the Board is affirmed.




                   P. KEVIN BROBSON, Judge




                            8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Nicholson,                  :
                     Petitioner     :
                                    :
            v.                      :   No. 994 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


            AND NOW, this 9th day of March, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                           P. KEVIN BROBSON, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Nicholson,                       :
                                         : No. 994 C.D. 2015
                          Petitioner     : Submitted: November 13, 2015
                                         :
                     v.                  :
                                         :
Unemployment Compensation                :
Board of Review,                         :
                                         :
                          Respondent     :

BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                                 FILED: March 9, 2016


             Because I believe that the Board erred in concluding that Claimant
voluntarily resigned without cause of a necessitous and compelling nature, I
respectfully dissent.


             The majority, citing Lee v. Unemployment Compensation Board of
Review, 33 A.3d 717, 721 (Pa. Cmwlth. 2011), concludes that Claimant voluntarily
quit his employment because he signed a resignation letter and a settlement
agreement requiring him to resign. Claimant does not dispute that he signed the letter
and settlement agreement.      Instead, Claimant argues that Employer effectively
severed the employment relationship before Claimant signed the resignation letter
and settlement agreement by failing to provide Claimant a position within his
restrictions.


                Our decision in Lee does not change the long-standing requirement that
in determining whether a claimant voluntarily quit his or her employment or was
discharged, this court must consider the totality of the facts surrounding the
claimant’s separation from his or her employment.                Key v. Unemployment
Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996).


                Where a claimant voluntarily quits his or her employment, he or she
bears the burden of proving a necessitous and compelling reason for quitting. Wert v.
Unemployment Compensation Board of Review, 41 A.3d 937, 940 (Pa. Cmwlth.
2012). The Pennsylvania Supreme Court has defined “necessitous and compelling
reason” as follows:


                “[G]ood cause” for voluntarily leaving one’s employment
                (i.e. that cause which is necessitous and compelling) results
                from 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.


Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 832-33 (Pa.
1977). Additionally, a claimant’s medical problems may be cause of a necessitous
and compelling nature.         Karwowski v. Unemployment Compensation Board of
Review, 74 A.3d 1179, 1184 (Pa. Cmwlth. 2013). Where a claimant cannot perform
his or her normal position due to a medical condition, the claimant must inform the
employer that he or she cannot perform his or her regular duties and be available for

                                         RSF - 2 -
work within his or her medical restrictions. Waste Management v. Unemployment
Compensation Board of Review, 651 A.2d 231, 236 (Pa. Cmwlth. 1994). If the
employer then fails to provide the claimant with a position within his or her medical
restrictions, the claimant’s subsequent voluntary quit “‘will be deemed the result of a
necessitous and compelling cause.’” Id. (citation omitted).


              Claimant testified that the “light-duty” position Employer offered him
after his July 2014 shoulder surgery was not within his medical restrictions because
the position required Claimant to constantly lift more than 50 pounds. (N.T., 1/22/15,
at 5.) Claimant also testified that this position was actually the same position he had
held since at least 2011. (Id. at 5, 7.) Claimant testified that he had returned to this
position in 2011 after his first surgery for a work-related shoulder injury.1 (Id. at 7.)
Claimant then aggravated his injury and had a second surgery, after which he again
returned to that position. (Id.) Claimant also testified that after his third shoulder
surgery, doctors informed him that further aggravation of his shoulder injury might
require a shoulder replacement. (Id. at 6.) Fearing further surgery, Claimant did not
return to that position for a third time. (Id. at 7-8.) Employer did not offer Claimant
a position within his medical restrictions. (Id. at 6, 9.) Claimant testified that only
then, faced with no prospect of a suitable position with Employer, did he formally
resign by signing the settlement agreement. (Id. at 5-6.)




       1
          Claimant testified that he began receiving workers’ compensation (WC) benefits following
his first surgery in 2011 and that his WC benefits terminated pursuant to the November 2014
settlement agreement. (N.T., 1/22/15, at 7-8.)




                                           RSF - 3 -
                The Board failed to even address Claimant’s foregoing testimony, even
though his testimony was uncontradicted2 and critical to understanding the context of
Claimant’s signing of the resignation letter and the settlement agreement. Unlike the
Board and the majority, I believe that Claimant’s resignation letter and acceptance of
the settlement agreement cannot be viewed in isolation.                 In light of Claimant’s
uncontradicted testimony regarding his medical and work histories, his legitimate
medical concerns, and Employer’s refusal to offer Claimant a position within his
medical restrictions, I would conclude that Claimant had a necessitous and
compelling reason for quitting. Requiring Claimant to accept employment beyond
his medical restrictions for a third time violates the humane purpose of the
Unemployment Compensation Law (Law).3


                Accordingly, I respectfully dissent.4




                                                 ___________________________________
                                                 ROCHELLE S. FRIEDMAN, Senior Judge




      2
          Notably, Employer did not testify at the referee’s hearing.

      3
        Act of December 5, 1936, Second Ex. Session, P.L. (1937), as amended, 43 P.S. §§751-
914. See Diehl v. Unemployment Compensation Board of Review (ESAB Group, Inc.), 57 A.3d
1209, 1217 (Pa. 2012) (stating that the Law’s purpose is remedial and humanitarian).

      4
         I note also that because the Law’s purpose is to provide benefits to workers who are
unemployed through no fault of their own, “‘its provisions must be liberally and broadly
construed.’” LaChance v. Unemployment Compensation Board of Review, 987 A.2d 167, 170 (Pa.
Cmwlth. 2009) (citation omitted).



                                              RSF - 4 -
