                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Uniontown Medical                              :
Rehabilitation, P.C.,                          :
                   Petitioner                  :
                                               :   No. 1738 C.D. 2015
              v.                               :
                                               :   Submitted: February 19, 2016
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                     FILED: July 29, 2016


              Uniontown Medical Rehabilitation, P.C. (Employer) petitions for review
of the August 18, 2015 order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s decision that Jamie L. Ranaldi (Claimant) was
not ineligible for benefits under section 402(b) of the Unemployment Compensation
Law (Law).1




       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
In relevant part, section 402(b) provides that an employee who voluntarily leaves work without
cause of a necessitous and compelling nature is ineligible for compensation.
              Employer’s business included performing medical case reviews for
employers in workers’ compensation matters.2                 Claimant began working for
Employer in 2007 as an office manager/utilization review (UR) coordinator/medical
file reviewer at a rate of pay of $18.00 per hour and regularly worked in excess of
forty hours per week. Claimant’s job duties included reviewing medical files and
providing a summary so that Employer could issue a decision in regard to the
necessity of continued medical treatment for injured workers. As Employer’s work
load increased, Claimant requested that Employer hire additional staff. On April 13,
2015, Dr. Kaplan advised Claimant that he needed her to prepare files for a client and
to work overtime to complete this task. However, Claimant advised Dr. Kaplan that
she had scheduled a family outing with her children and was unable to work overtime
that evening. (Referee’s Findings of Fact Nos. 1-5.)
              Dr. Kaplan became upset with Claimant because he felt that she was not
being a team player and did not care whether the work was getting done. Dr. Kaplan
informed Claimant that the work must be done and that if she could not do it, then her
hours would be cut to part-time in order to pay a new employee to do the work.
Claimant objected to the threat of a reduction of her hours, to which Dr. Kaplan
responded that her earnings were much better that what others received in the
Uniontown area. Based upon her conversation with Dr. Kaplan and his threats to cut
her hours and wages, Claimant tendered her resignation that same day. (Referee’s
Findings of Fact Nos. 6-10.)
              Claimant applied for unemployment compensation, and on April 30,
2015, the local job center determined that Claimant was ineligible for benefits under

       2
         The record indicates that Richard Kaplan, M.D., was the sole shareholder of Employer and
that while Claimant has an LPN degree, she is not licensed as an LPN.



                                               2
section 402(b) of the Law. Claimant appealed, and the matter was assigned to a
referee. The referee conducted a hearing on May 27, 2015.
             At this hearing, Claimant testified that she sent Dr. Kaplan an email on
April 13, 2015, stating that she was experiencing back problems and needed to see a
chiropractor, that she received a response from Dr. Kaplan indicating that was fine
and detailing the work she needed to complete that day. Claimant stated that some of
this work was moved from a different day on the schedule, which resulted in an
overload of work that day. Claimant said that Dr. Kaplan questioned if she would be
working late to finish this work. Claimant noted that Dr. Kaplan had asked her to
prepare a medical history in a case involving more than 2,000 pages of medical
history, which she described as nearly impossible to complete in an eight-hour day.
She responded to Dr. Kaplan that she could not complete the work that night because
of a family commitment, but he was adamant that the work be done. (Reproduced
Record (R.R.) at 27a-28a.)
             Claimant testified that Dr. Kaplan advised her that if she could not work
overtime to complete the assignment, he could no longer guarantee her full-time
work.   Claimant stated that she always worked overtime and normally had no
problem doing so, but that she could not on that particular day. Claimant indicated
that she had been trying for months to get Dr. Kaplan to hire more help, but he
refused. After completing her normal work day on April 13, 2015, and speaking with
her husband, Claimant stated that she informed Dr. Kaplan of her decision to resign.
Claimant explained her reason for resigning as Dr. Kaplan’s refusal to hire more help
despite an overload of work for Employer, and herself in particular. Claimant noted
that Dr. Kaplan’s wife called her the next day and asked her to come back to work,
with less responsibilities but also at a reduced rate of pay.   (R.R. at 28a-30a.)



                                            3
               On cross-examination, Claimant acknowledged that Dr. Kaplan
informed her from the beginning that he needed her skill set more than forty hours
per week and that she had worked overtime throughout the course of her
employment. Claimant later admitted that she considered overtime to be part of her
job. As to her workload on April 13, 2015, Claimant reiterated that it would have
been impossible to complete all of the work assigned to her that day, even if she
worked for twelve hours. Claimant testified that Dr. Kaplan advised her on that day
that if she could not work more than forty hours per week, he would have to hire a
second person with whom she would have to share hours. (R.R. at 33a-35a.)
               Dr. Kaplan testified that part of his business includes utilization reviews
that are randomly assigned by the Bureau of Workers’ Compensation, thereby
resulting in a fluctuating caseload. Dr. Kaplan stated that overtime was a requirement
for Claimant as his UR coordinator.3             He identified the three positions held by
Claimant, namely office manager, UR coordinator, and medical file reviewer. He
explained that the medical file reviewer position was not part of the UR process, that
Claimant was required to review and summarize medical records for outside clients,
and that the caseload fluctuated substantially. Dr. Kaplan noted that the deadline for
these reviews was set by the client and sometimes changed. (R.R. at 39a-41a.)
               As to staffing, Dr. Kaplan noted that prior to her resignation, Claimant
was the only nurse on staff, along with five full-time and one part-time clerical
employees, a bookkeeper, a medical transcriptionist, and a second UR coordinator.


       3
          During this line of questioning, the referee interjected that he understood Claimant’s
reasons for leaving as being due to lack of staff, not overtime, and he advised Employer’s counsel to
direct his questions to the staffing issue. See R.R. at 39a-40a. The referee also advised Employer’s
counsel that any exhibits he had relating to the amount of overtime that Claimant worked would not
be relevant. See R.R. at 40a.



                                                 4
He noted that his wife, with Claimant’s help and for which Claimant was separately
compensated, had obtained approval for a second review organization in March of
2015 and that he anticipated hiring more staff as the workload increased. With
respect to situation on April 13, 2015, Dr. Kaplan testified that he believed Claimant
was upset with the amount of overtime she was working and that he offered her three
or four options, including hiring more skilled staff, but informed Claimant that the
necessary hours would be shared between Claimant and any new staff. He stated that
Claimant did not want to lose her overtime hours, but acknowledged she could not
handle all of these hours by herself. (R.R. at 42a-47a.)
             Upon further questioning by the referee, Claimant reiterated that she did
not resign because of having to work overtime; rather “[t]here just wasn’t enough
staff. It became too stressful. It was too much work for a few people.” (R.R. at 50a.)
Claimant testified that Dr. Kaplan told her he could not guarantee her full-time work
if she would not work overtime. Id. Claimant stressed that she never said she would
not work overtime and decided to quit after the threat of being moved to part-time.
Id. On further cross-examination, Claimant acknowledged that Dr. Kaplan provided
her with options for continued employment. However, Claimant stated that said
options included a $3.00 per hour reduction in pay “for no apparent reason.” (R.R. at
51a.) Finally, Claimant noted that she would not have been able to complete the
April 13, 2015 assignment, consisting of 2,000 pages of medical history, even if she
worked on it from “6:00 in the morning . . . until 10:00 at night.” (R.R. at 52a.)
             By decision and order dated June 12, 2015, the referee reversed the
determination of the local job center that Claimant was ineligible for benefits under
section 402(b) of the Law.       The referee concluded that Employer’s “constant
threatening to cut the claimant’s hours to part time if she did not work all of the



                                           5
employers [sic] needed overtime to get the ‘job done’ is an extreme unilateral change
in working conditions which would make a reasonable person leave the
employment.” (Referee’s decision at 2.) Employer appealed to the Board. The
Board affirmed, adopting and incorporating the referee’s findings and conclusions.
              On appeal to this Court,4 Employer argues that the Board erred as a
matter of law in concluding that it unilaterally changed Claimant’s working
conditions such that Claimant had a necessitous and compelling reason to leave her
employment. We disagree.
              In order to be entitled to unemployment benefits, an employee who
voluntarily terminates her employment bears the burden of proving that she had cause
of a necessitous and compelling nature. Renda v. Unemployment Compensation
Board of Review, 837 A.2d 685, 692 (Pa. Cmwlth. 2003).                     Necessitous and
compelling cause occurs when there is real and substantial pressure to terminate one’s
employment that would compel a reasonable person to do so under similar
circumstances. Id. at 691-92. Generally, a claimant must show that she acted with
ordinary common sense in quitting, made a reasonable effort to preserve her
employment, and had no real choice but to leave her employment.                    Cowls v.
Unemployment Compensation Board of Review, 427 A.2d 722, 723 (Pa. Cmwlth.
1981); see also Gioia v. Unemployment Compensation Board of Review, 661 A.2d
34, 37 (Pa. Cmwlth. 1995) (noting that the claimant refused to attend a second
meeting the employer offered to set up). Whether a claimant has necessitous and



       4
         Our scope of review in an unemployment compensation appeal 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. 2 Pa.C.S. §704; Leace v.
Unemployment Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014).



                                              6
compelling cause to quit is a question of law subject to appellate review. Taylor v.
Unemployment Compensation Board of Review, 378 A.2d 829, 832 (Pa. 1977).
             A substantial unilateral change in job duties that renders a job unsuitable
may give rise to a necessitous and compelling reason to quit. Accu-Weather, Inc. v.
Unemployment Compensation Board of Review, 634 A.2d 818, 820 (Pa. Cmwlth.
1993).   However, this only occurs if the job modification is unreasonable.          Id.
Employers are entitled to modify the employment specifications with regard to time,
place and manner of employment, i.e., tasks assigned to an employee, so long as the
employer acts reasonably and in good faith.               Monaco v. Unemployment
Compensation Board of Review, 565 A.2d 127, 129 (Pa. 1989); see also Mosebauer
v. Unemployment Compensation Board of Review, 433 A.2d 599, 600 (Pa. Cmwlth.
1981). An employee’s mere dissatisfaction with a change in job duties does not
constitute a necessitous and compelling reason to quit. Monaco, 565 A.2d at 130.
Rather, working conditions must substantially change, to the point that voluntary
termination is necessary, in order for a claimant to have necessitous and compelling
reason to quit. Id.
             In the present case, the Board adopted the findings and conclusions of
the referee. The referee concluded that Employer’s “constant threatening to cut the
claimant’s hours to part time” constituted “an extreme unilateral change in working
conditions which would make a reasonable person leave the employment.”
(Referee’s decision at 2.) We agree.
             The parties do not dispute that Claimant regularly worked overtime
during the course of her employment with Employer. Upon learning that Employer
needed her to work overtime on April 13, 2015, Claimant responded that she could
not work overtime that evening due to a previously scheduled family outing.



                                           7
Employer advised Claimant that if she could not work the overtime as required, he
would have to hire another person who would ultimately share Claimant’s
responsibilities and hours, thereby reducing her hours to part-time.      Dr. Kaplan
repeated this explanation over the course of his conversations with Claimant
regarding overtime work on April 13, 2015. However, Claimant testified that even if
she did work overtime on April 13, 2015, she would not have been able to complete
Employer’s assignment, which required review of 2,000 pages of medical history.
The Board credited Claimant’s testimony in this regard.
             Essentially, Claimant was given the choice between complying with an
unreasonable directive, and foregoing her family commitment, to attempt to complete
an impossible task, or face a reduction in hours and rate of pay. The latter would
certainly constitute a unilateral change in the terms and conditions of Claimant’s
employment, and one that would have been unreasonable given Claimant’s prior
work history and the impracticability of Dr. Kaplan’s demand. Claimant simply had
no other alternative than to quit her employment at that point in time.
             Because Dr. Kaplan’s demand placed a real and substantial pressure on
Claimant to terminate her employment and she had no real choice but to resign, the
Board did not err in concluding that Claimant met her burden of establishing cause of
a necessitous and compelling nature such that she was not ineligible for benefits
under section 402(b) of the Law.
             Accordingly, the order of the Board is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Uniontown Medical                   :
Rehabilitation, P.C.,               :
                   Petitioner       :
                                    :    No. 1738 C.D. 2015
            v.                      :
                                    :
Unemployment Compensation           :
Board of Review,                    :
                 Respondent         :


                                 ORDER


            AND NOW, this 29th day of July, 2016, the order of the
Unemployment Compensation Board of Review, dated August 18, 2015, is hereby
affirmed.



                                        ________________________________
                                        PATRICIA A. McCULLOUGH, Judge
