            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tammy L. McTaggart,                          :
                                             : No. 1845 C.D. 2015
                            Petitioner       : Submitted: February 12, 2016
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :
                                             :
                            Respondent       :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                        FILED: April 19, 2016

              Tammy L. McTaggart (Claimant) petitions for review of the September
18, 2015, order of the Unemployment Compensation Board of Review (UCBR)
affirming the decision of a referee to deny Claimant unemployment compensation
(UC) benefits under section 402(b) of the Unemployment Compensation Law (Law).1
The UCBR concluded that Claimant was ineligible for UC benefits because she failed
to establish a necessitous and compelling reason for voluntarily quitting her
employment. We affirm.



       1
         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 “[a]n employe shall be ineligible for
compensation for any week . . . [i]n which [her] unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.” 43 P.S. §802(b).
                Claimant worked full time for MexAmerica Foods (Employer) as a pre-
mix line operator from October 18, 2010, through June 18, 2015. (Findings of Fact,
No. 1.)2 Claimant was under a doctor’s care and taking medication for anxiety. (Id.,
No. 2.) Employer knew that Claimant was on medication because Claimant had
given her medication to Elaine Vogt, Employer’s human resources manager, to hold
for Claimant and to provide to Claimant when needed. (Id., No. 3.) Claimant did not
inform Employer of any work restrictions while she was being treated for anxiety.
(Id., No. 4.)


                On June 18, 2015, Employer changed a normal operating procedure,
which caused Claimant to have a panic attack. (Id., No. 5.) Claimant asked to leave
the building, but Employer denied her request. (Id., No. 6.) Claimant then went out
to lunch.       (Id., No. 7.)   When Claimant returned, she learned that three other
employees with more seniority than her had been allowed to leave work. (Id.)
Claimant reiterated to Employer that she was having a panic attack and needed to
leave the building. (Id.) Employer told Claimant that she needed to stay on the
production line for one more hour, at which time Employer would reassess whether
Claimant would be moved to another area or permitted to go home. (Id., No. 8.)
Claimant voluntarily left work after Employer told her that she needed to wait an
additional hour. (Id., No. 9.)


                Claimant believed that Employer would call her after June 18, 2015, to
return to work. (Id., No. 10.) When Employer did not call, Claimant did not contact


       2
          The UCBR adopted and incorporated the referee’s findings of fact and conclusions of law
in their entirety.

                                               2
Employer or report for her next scheduled shift because she did not want to return to
work after her June 18, 2015, panic attack. (Id.)


               Claimant filed a claim for UC benefits, which the local service center
granted. Employer appealed to the referee, who held a telephone hearing on August
5, 2015, during which Claimant, Vogt, and Darlene Samick, Claimant’s floor
supervisor, testified.3 The referee found that Claimant failed to specifically inform
Employer of her medical problem or any restrictions so that Employer could make a
reasonable accommodation. (Ref.’s Decision at 3.) Because Claimant failed to meet
her burden of proving a necessitous and compelling reason to quit her employment,
the referee reversed the service center’s decision. (Id.) Claimant appealed to the
UCBR, which affirmed. Claimant now petitions this court for review.4


               Claimant first argues that the UCBR erred in concluding that Claimant
initiated her separation from employment because Claimant did not intend to quit her
job.5 We disagree.




       3
          Another Employer witness, Tom Kornacki, was also present during the hearing but did not
offer testimony. Neither Claimant nor Employer was represented by counsel at the hearing.

       4
         Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.

       5
          In her brief, Claimant argues that Vogt asked her to sign a voluntary resignation form
before she left work on June 18, 2015. (Cl.’s Br. at 12-14; see R. Item No. 3 at 5b.) Claimant
asserts that due to her mental state at the time, she did not read the form before signing it and, thus,
her resignation was not voluntary. (Cl.’s Br. at 12-14.) However, the UCBR did not base its
voluntary quit determination on that document. Therefore, we need not address this claim.

                                                   3
            The evidence credited by the UCBR established that after experiencing
the panic attack, Claimant went out to lunch and returned from her lunch break to
continue working. When Claimant again asked to leave the building, Employer told
her that she needed to stay on the production line for one more hour, after which
Employer would decide whether to move Claimant to another area or allow her to go
home. The UCBR found that it was only after Claimant learned that other employees
had been allowed to leave early that Claimant asserted her inability to remain at
work. Furthermore, Claimant admitted that after leaving work on June 18, 2015, she
neither contacted Employer nor reported for her next scheduled shift because she did
not want to return to work. (N.T., 8/5/15, at 10.) Therefore, the record contains
substantial evidence to support the UCBR’s determination that Claimant initiated her
separation from employment.


            Next, Claimant contends that the record lacks substantial evidence to
support the UCBR’s finding that Clamant did not specifically inform Employer of her
medical condition. We disagree.


            It is well settled that a claimant’s health problem can create a necessitous
and compelling reason to terminate employment.            Genetin v. Unemployment
Compensation Board of Review, 451 A.2d 1353, 1355 (Pa. 1982). To establish a
health problem as a compelling reason to quit, the claimant must prove that: (1) an
adequate health reason existed to justify the quit; (2) she informed the employer of
the health problem; and (3) she is available to work if reasonable accommodations
can be made. Lee Hospital v. Unemployment Compensation Board of Review, 637
A.2d 695, 698 (Pa. Cmwlth. 1994). A claimant’s failure to prove any of these
elements will bar a claim for UC benefits. Id.

                                          4
            Here, the UCBR determined that Claimant satisfied the first prong,
finding that “[C]laimant had health reasons of sufficient dimension that compelled
[her] to quit on June 18, 2015.” (Ref.’s Decision at 3.) The UCBR determined,
however, that Claimant did not satisfy the second prong because she failed to prove
that she informed Employer of her medical condition. We agree.


             “[A] claimant who desires to quit a job for health reasons must
communicate her health problem[] to her employer so that the employer can attempt
to accommodate the problem.” Blackwell v. Unemployment Compensation Board of
Review, 555 A.2d 279, 281 (Pa. Cmwlth. 1989). Before an employer’s duty to
accommodate is triggered, the employer must have sufficient knowledge of the
claimant’s health condition. See id. Thus, the claimant must communicate her
“specific physical restrictions” to the employer and “explain [to the employer] her
inability to perform her regularly assigned duties.”         Fox v. Unemployment
Compensation Board of Review, 522 A.2d 713, 715 (Pa. Cmwlth. 1987); see Bailey v.
Unemployment Compensation Board of Review, 653 A.2d 711, 713-14 (Pa. Cmwlth.
1995).


            The record shows that although Vogt knew that Claimant was under a
doctor’s care and kept Claimant’s medications in her office, Claimant never discussed
with Vogt her medical condition or any restrictions associated with her condition.
Vogt testified that Claimant “would just come in and tell me if she needed [a
medication] and I would give it to her.” (N.T., 8/5/15, at 15.) Vogt testified that
Claimant “gave me lists of medications that she was taking . . . . She would just hand
me a piece of paper . . . telling me that this is the medication that she’s on. And I


                                          5
would put it in her personnel file.” (Id.) Vogt also testified that she had never seen
Claimant have a panic attack before June 18, 2015. (Id.)


              With regard to notice, Claimant testified that “every time I changed
medication, they were all made well aware of it.” (Id. at 11.) Claimant further
testified that Samick, who was not present on Claimant’s last day of work, had
permitted Claimant to leave the production line during prior panic attacks, which
should have put Employer on notice of her condition. (Id.)6 This court has stated,
however, that “‘[a] constructive notice concept cannot obviate the claimant’s duty to
inform the employer of a health problem before voluntarily terminating
employment.’”       Lee Hospital, 637 A.2d at 699 (citation omitted).                  Therefore,
Claimant failed to prove that she properly informed Employer of her medical
condition so as to trigger a duty to accommodate. See id. (rejecting the claimant’s
assertion that the employer “should have known” about her health condition where
the claimant testified that “‘[s]everal people knew what [she] was going through’”
and she believed her condition “‘was quite obvious’”) (citing testimony); Blackwell,
555 A.2d at 282 n.6 (noting that the claimant’s written notice to the employer of her
health problem, given in conjunction with her resignation, “came too late to permit
[the] [e]mployer to accommodate [the] [c]laimant”).




       6
         Although Samick was present at the hearing, Claimant asked her no questions on this issue.
Claimant also presented no witnesses of her own. We recognize that Claimant was without counsel
at the hearing. However, “a layperson who represents [herself] in legal matters must to an extent
assume the risk that [her] lack of expertise in legal training will prove [her] undoing.” Huffman v.
Unemployment Compensation Board of Review, 555 A.2d 287, 288 (Pa. Cmwlth. 1989).

                                                 6
             The record also supports the UCBR’s determination that Claimant failed
to inform Employer of any work restrictions due to her medical condition before
voluntarily quitting. Vogt testified as follows:

             If [Claimant] would have brought in something from her
             doctor stating that – what her limitations were, we would
             have worked with her. We would have found something for
             her to do. I mean, we have worked in the past with other
             people who have had issues that they needed work – special
             treatment, you know, work limitations. We have worked
             with them for over – we have been here for over 20 years
             and never had this type of thing happen.

(N.T., 8/5/15, at 14.) Claimant admitted that she did not provide Employer with any
limitations imposed by her doctor. (Id. at 11.) Because Claimant failed to notify
Employer of any work restrictions before voluntarily quitting, the UCBR correctly
concluded that Claimant failed to make a good faith effort to preserve her
employment.


             Accordingly, we affirm.




                                       __________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                           7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tammy L. McTaggart,                  :
                                     : No. 1845 C.D. 2015
                       Petitioner    :
                                     :
                 v.                  :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                       Respondent    :



                                    ORDER


           AND NOW, this 19th day of April, 2016, we hereby affirm the
September 18, 2015, order of the Unemployment Compensation Board of Review.


                                     ___________________________________
                                     ROCHELLE S. FRIEDMAN, Senior Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tammy L. McTaggart,             :
               Petitioner       :
                                :
           v.                   :         No. 1845 C.D. 2015
                                :         Submitted: February 12, 2016
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: April 19, 2016

             I concur in the result. I write separately because I disagree with the
majority’s analysis of whether Employer had notice of Claimant’s medical
condition.
             It is undisputed that Claimant suffers from anxiety for which she takes
medication. Employer had actual notice of this condition because Employer’s
human resources department maintained her medication so that it could dispense it
to her when needed. The Referee’s discussion includes the following observation:

             In the present case, the claimant was under the care of a
             physician and was prescribed medication for anxiety. The
             claimant made the employer aware that she was under a
             doctor’s care and was given medication for anxiety, but was not
             under any sort of medical restriction while working for the
             employer.
Referee Decision at 2 (emphasis added). Claimant also testified that her supervisor
had previously permitted her to leave work when she experienced a panic attack.
             In discussing whether Employer had notice of Claimant’s condition,
the majority addresses a “constructive notice concept.” Majority slip op. at 6
(quoting Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d
695, 699 (Pa. Cmwlth. 1994)).        Constructive notice is not implicated here.
Because Claimant’s supervisor knew of Claimant’s anxiety as did Employer’s
human resources department, Employer had actual notice of Claimant’s medical
condition.
             However, as it turns out, Employer’s notice of Claimant’s health
condition is irrelevant. The Referee found that Claimant was “not under any sort
of medical restriction while working” for Employer and, despite her panic attack,
Claimant “was still able to work on the day in question, even returning from lunch,
to continue working.” Referee Decision at 2, 3. Claimant left work only after
finding out that three other employees had been permitted to leave. In short, the
Referee did not credit Claimant’s testimony that she had to leave work on the day
in question because of her panic attack. I agree that Claimant is not entitled to
benefits because she did not prove that her health condition caused her to terminate
her employment.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




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