           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tara R. Coddington,             :
                 Petitioner     :
                                :
           v.                   :               No. 716 C.D. 2015
                                :               Submitted: November 6, 2015
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEAVITT                                                   FILED: February 19, 2016

              Tara Coddington (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
denying her claim for benefits. The Board held that Claimant was ineligible for
benefits under Section 402(b) of the Unemployment Compensation Law (Law)2
because she did not have a necessitous and compelling reason to quit her job. For
the reasons that follow, we affirm.


1
  This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
  Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Section 402(b) provides, inter alia, that “[a]n employe 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....” 43 P.S. §802(b).
              Claimant worked as a recovery coordinator for the Center for Organ
Recovery (Employer) from April 1, 2012, until July 2, 2014, at a final rate of pay
of $21.96 per hour. On November 12, 2013, Claimant sustained an injury at work,
prompting Claimant to file a workers’ compensation claim3 and take a medical
leave of absence. On May 13, 2014, Claimant underwent an Independent Medical
Examination (IME) by a physician, and he concluded that Claimant could return to
work without restrictions.       However, on June 2, 2014, Claimant’s personal
physician examined Claimant and concluded that Claimant was not completely
recovered. Claimant’s personal physician authorized Claimant to accept light-duty
work only. Employer received both medical reports.
              On June 5, 2014, Claimant returned to work.              At the request of
Employer, Claimant signed a statement outlining the terms of her employment,
including the ability to work full-duty. Thereafter, Claimant completed two shifts.
However, when Employer called Claimant on June 23, 24, 26, and 30, 2014, to
give her assignments, Claimant did not answer or call Employer back.4 Because
Employer could not reach Claimant, Employer could not assign her work.
Employer also sent Claimant a certified letter requesting that she be available to
work on June 30, 2014. The letter was accepted, but Claimant did not respond or
appear for work on that date.         Accordingly, on July 2, 2014, Employer sent
Claimant a letter stating it considered Claimant’s failure to respond to any calls or
the certified letter a resignation.


3
 The results of this claim are still pending.
4
  Employer uses a scheduling system where employees are considered “on-call” until a case is
assigned to them and they are scheduled to work specific dates. When Employer calls a
scheduled employee with a case, the employee is expected to respond and come into work.


                                             2
            On November 5, 2014, Claimant applied for unemployment benefits.
The UC Service Center sent Claimant a Notice of Determination on February 2,
2015, stating that she was eligible to receive unemployment benefits. Employer
appealed the determination, and a hearing was scheduled for March 2, 2015.
Claimant did not attend the hearing.        Thus, Claimant did not challenge the
testimony of Chris Duckett, Employer’s Associate Director of Human Resources,
who testified on behalf of Employer before the Referee. Duckett testified:

            [Claimant] failed to return any of [our] phone calls over the
            course of a week for her normal scheduled shifts. Not only did
            she not call us -- she didn’t call us to say she couldn’t work.
            She didn’t call us to say she, you know, was unable to work.
            She simply did not return any phone call whatsoever.

Notes of Testimony, March 2, 2015, at 7 (N.T. __). He continued:

            [H]ad [Claimant] actually responded to any of the phone calls,
            she would still be an employee of [Employer]. It was not our
            hope that she would leave. In fact, our goal was to have her
            return from her injury with no issues whatsoever and be ready
            to work. She was given a full-duty release by a physician.…
            We attempted multiple times to reach [her] to offer her work
            and offer employment, and she did not … return any phone
            call[s], whatsoever. In fact, for a period of almost two months,
            we didn’t hear from her. So, you know, at that point, we
            consider her to have voluntarily resigned her position. And,
            whether, you know, she had a reason or not, I mean, the fact
            that she has not returned any phone call whatsoever to say or to
            close that loop or indicate that she was unable to work or
            anything along those lines shows that she abandoned her
            position; that she chose to leave with no good cause. She
            accepted a position to come back to work, and then she walked
            away from it.

N.T. 11.



                                        3
               On March 4, 2015, the Referee issued a decision finding in favor of
Employer.      The Referee held that Claimant was ineligible for benefits under
Section 402(b) of the Law because she did not have a necessitous and compelling
reason to leave her employment. On April 16, 2015, the Board affirmed the
decision of the Referee. The Board explained:

               The Board credits the IME physician, who released [C]laimant
               to full-duty work. The [C]laimant returned to full duty for two
               days and did not notify [Employer] of any issues or pain.
               Further, [C]laimant did not communicate to [Employer] her
               desire to work light duty rather than full duty. [Employer]
               credibly testified that there were no issues for the two shifts that
               [C]laimant worked.

Board Adjudication at 2. Claimant then petitioned for this Court’s review.
               On appeal,5 Claimant contends that the Board erred by not remanding
the matter to the Referee so that Claimant could offer evidence in support of her
position. In the alternative, Claimant contends that the Board erred in concluding
that Claimant lacked a necessitous and compelling reason to resign. The Board
counters that a remand is not warranted because Claimant’s negligence is the
reason she missed the hearing. Further, because Claimant did not submit evidence
at the hearing, Claimant failed to meet her burden of showing that she quit for a
necessitous and compelling reason. We agree.




5
  Our review is to determine whether the Board’s “adjudication is in violation of the
constitutional rights of the appellant, or is not in accordance with law, or that the provisions of
… [the Administrative Agency Law relating to practice and procedure] have been violated …, or
that any finding of fact made by the agency and necessary to support its adjudication is not
supported by substantial evidence.” Kirkwood v. Unemployment Compensation Board of
Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987) (quoting 2 Pa. C.S. §704).


                                                4
             Beginning with Claimant’s first issue, the relevant Department of
Labor and Industry regulation states: “If a party notified of the date, hour and place
of a hearing fails to attend a hearing without proper cause, the hearing may be held
in his absence.” 34 Pa. Code §101.51. “[W]here a party fails to appear at a
scheduled hearing, the Board may remand the case for an additional hearing only
where the Board has made an independent determination that the reasons set forth
by the party for its failure to appear constitute proper cause.”          Sanders v.
Unemployment Compensation Board of Review, 524 A.2d 1031, 1032 (Pa.
Cmwlth. 1987). A “claimant’s own negligence is insufficient ‘proper cause,’ as a
matter of law, to justify [her] failure to appear at a referee’s hearing and warrant a
new hearing.” Savage v. Unemployment Compensation Board of Review, 491 A.2d
947, 950 (Pa. Cmwlth. 1985).
             In her brief to this Court, Claimant explains that she missed the
Referee’s hearing because she “mixed up [her] days.” Claimant Brief at 8. That
Claimant “mixed up her days” is, simply, the result of negligence.           Because
Claimant did not demonstrate proper cause for her nonappearance at the Referee’s
hearing, the Board correctly denied her request for a remand.
             Claimant next contends that the Board erred in concluding that she
lacked a necessitous and compelling cause to leave her employment. Claimant
argues that she was justified in quitting because her health precluded her from
carrying out the duties of her job. “Where a claimant has voluntarily terminated
[her] work, the claimant bears the burden of proving that such termination was
with cause of a necessitous and compelling nature.” Petrill v. Unemployment
Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005) (quoting
Pacini v. Unemployment Compensation Board of Review, 518 A.2d 606, 607 (Pa.


                                          5
Cmwlth. 1986)).    Health problems can provide a necessitous and compelling
reason to quit one’s employment. Genetin v. Unemployment Compensation Board
of Review, 451 A.2d 1353, 1355 (Pa. 1982). A claimant asserting health problems
as a reason for quitting a job must: (1) offer competent testimony that adequate
health reasons existed to justify the voluntary termination; (2) have informed the
employer of the health problems; and (3) be able and available to work if
reasonable accommodation can be made. Id. at 1356.
            Under the first prong of Genetin, Claimant was required to offer
competent testimony that adequate health reasons justified her resignation.
However, Claimant did not present evidence. Absent any evidence from Claimant,
the Board credited the IME physician who approved Claimant to work full-duty.
Moreover, because Claimant failed to challenge any of the Board’s findings of
fact, those findings are conclusive on appeal.       Salamak v. Unemployment
Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985). Thus, we
are bound by the Board’s finding that Claimant was capable of performing full-
duty work and did not have an adequate health reason to justify voluntarily
terminating her employment.
            Claimant failed to satisfy the second prong of Genetin because she did
not inform Employer that she was having difficulty meeting the physical demands
of her job after returning to work. In fact, Claimant signed a form agreeing that
she could function as a full-duty employee.
            Finally, Claimant failed to satisfy the third prong of Genetin, which
required her to be able and available to work with reasonable accommodation.
Rather than make herself available, Claimant completely severed ties with
Employer by not responding to Employer’s repeated phone calls and certified


                                        6
letter, which was accepted. Claimant never gave Employer the chance to offer her
a reasonable accommodation and instead chose to remain ignorant of whatever
opportunities Employer could have extended.
            For all of the foregoing reasons, we affirm the adjudication of the
Board.

                                           ______________________________
                                           MARY HANNAH LEAVITT, Judge




                                       7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tara R. Coddington,             :
                 Petitioner     :
                                :
           v.                   :     No. 716 C.D. 2015
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                               ORDER

           AND NOW, this 19th day of February, 2016, the order of the
Unemployment Compensation Board of Review dated April 16, 2015, in the
above-captioned matter is AFFIRMED.

                                       ______________________________
                                       MARY HANNAH LEAVITT, Judge
