                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brenda Ciena,                                :
                     Petitioner              :
                                             :    No. 1918 C.D. 2015
              v.                             :
                                             :    Submitted: January 29, 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: May 2, 2016

              Brenda Ciena (Claimant) petitions, pro se, for review of the August 28,
2015 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s determination that Claimant is ineligible for benefits pursuant to
section 402(b) of the Unemployment Compensation Law (Law).1 We affirm.
              Claimant began working for Guardian Life Insurance Company
(Employer) in July 2000 as a full-time Review Analyst.                  In September 2010,
Claimant resigned from her position with Employer to accept other employment.
Employer rehired Claimant on April 25, 2011. In early December 2014, Claimant

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides that an employee is ineligible for compensation for any week in
which her employment is due to voluntarily leaving work without cause of a necessitous and
compelling nature.
informed Employer that she required foot and ankle surgery and applied for a medical
leave of absence. Employer approved Claimant’s request for an eight-week medical
leave that was to begin on December 4, 2014, and also authorized the payment of
short-term disability benefits to Claimant for that time as well. (Findings of Fact at
Nos. 1-4.)
             After the expiration of her short-term medical leave, Claimant did not
return to work because of multiple surgical complications.       Employer agreed to
extend Claimant’s leave due to the complications. On May 11, 2015, Employer sent
Claimant a letter informing her that her extended medical leave would expire on June
3, 2015, which was consistent with Employer’s six-month limit on short-term
disability. The letter further stated that if Claimant did not return to work on that
date, her employment may be administratively terminated. Claimant was under the
medical care of a surgeon and chiropractor, and she provided Employer with a
medical release from her surgeon stating that she was able to return to work on June
3, 2015, provided that she is allowed to wear sneakers. (Findings of Fact at Nos. 6, 8-
9; Notes of Testimony (N.T.) at 3, 6.)
             In early June 2015, Claimant spoke with a senior human resources
partner who told Claimant that she had discussed Claimant’s case with in-house
counsel and assured Claimant that her job was not in jeopardy at that point in time.
On June 9, 2015, Employer informed Claimant that it also needed a release from her
chiropractor, which Claimant submitted to Employer on June 17, 2015. On June 19,
2015, Claimant was informed by Employer’s disability analyst that her case was
under review for long-term disability and that Employer needed further medical
documentation. Claimant voluntarily resigned from employment because she was




                                          2
frustrated with the way Employer was handling her disability case. (Findings of Fact
at Nos. 10-14; N.T. at 7-9.)
             Claimant filed a claim for benefits with the local service center, asserting
that she resigned from her employment because Employer was purposefully making
it difficult for her to return to work after the expiration of her medical leave.
Claimant further indicated that the inconsistent information she received from
Employer’s human resources partner and the disability analyst regarding her return to
employment frustrated her to the point of resignation.        The local service center
determined that Claimant was ineligible for benefits under section 402(b) of the Law
because she failed to present sufficient evidence that she voluntarily left work for
“cause of a necessitous and compelling nature.” 43 P.S. §802(b). Claimant appealed
and the case was assigned to a referee for a hearing.
             The referee conducted a hearing on July 29, 2015, at which Claimant
appeared and testified; Employer did not appear.        During the hearing, Claimant
testified to the facts recited above and stated that she felt that Employer treated her
unfairly when she provided Employer with all of the necessary medical
documentation and was not permitted to return to work. Claimant further testified
that after Employer agreed to extend her medical leave due to surgical complications,
Employer failed to accommodate her when it did not provide her with a laptop from
which she could work from home. (N.T. at 5, 8.)
             After reviewing the record, the referee affirmed the local service center’s
determination that Claimant was ineligible for benefits under section 402(b) of the
Law. In rendering his decision, the referee stressed that Claimant’s frustration with
Employer’s request for additional medical documentation did not render her work
situation so intolerable that a reasonable person in a similar situation would have quit.



                                           3
The referee reiterated that normal workplace strains and pressures do not constitute
adequate cause to voluntarily terminate employment.
              Claimant appealed to the Board, which affirmed the referee and adopted
the referee’s findings of fact and conclusions of law.
              On appeal to this Court,2 Claimant argues that the Board erred in
concluding that she did not have a necessitous and compelling reason for resigning
from her job. Claimant asserts that she had necessitous and compelling reasons to
voluntarily terminate her employment because she had tried, on more than one
occasion, to return to work with the proper medical documentation required by
Employer and was not permitted to return and that a reasonable person would not
tolerate conflicting information regarding his or her status of returning to work.
Claimant also maintains that, while working, high stress and pressure put on her from
her position directly affected her overall health and argues that she made several
“reasonable efforts” to preserve her employment by making phone calls, providing
necessary documents, and keeping Employer updated on the status of her recovery.
              In order to be eligible for unemployment compensation benefits under
section 402(b) of the Law, a claimant whose unemployment is due to voluntary
termination bears the burden of proving that such termination was for a necessitous
and compelling reason. Brown v. Unemployment Compensation Board of Review,
780 A.2d 885, 888 (Pa. Cmwlth. 2001).             Necessitous and compelling cause exists
where the claimant demonstrates that: circumstances existed which produced real
and substantial pressure to terminate the claimant’s employment; similar

       2
         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).



                                              4
circumstances would compel a reasonable person to act in the same manner; the
claimant acted with ordinary common sense; and the claimant made a reasonable
effort to preserve his or her employment. Id. The question of whether a claimant has
a necessitous and compelling cause to voluntarily quit her employment is a question
of law subject to the appellate review of this Court. Port Authority of Allegheny
County v. Unemployment Compensation Board of Review, 955 A.2d 1070, 1074 (Pa.
Cmwlth. 2008).
            In terms of assessing whether there is a necessitous and compelling
cause to quit, “[o]ur case law distinguishes normal workplace strains from pressures
extreme enough to justify a resignation.”       Ann Kearney Astolfi DMD PC v.
Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa. Cmwlth.
2009).   This Court has consistently held that mere dissatisfaction with working
conditions, absent an intolerable work atmosphere, does not constitute a necessitous
and compelling reason for a voluntary quit. Gioia v. Unemployment Compensation
Board of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995) (citing Uniontown
Newspapers, Inc. v. Unemployment Compensation Board of Review 558 A.2d 627,
629 (Pa. Cmwlth. 1988)). “We have explained that a [n]ecessitous and compelling
cause for voluntarily leaving employment [is one that] 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.” Astolfi, 995 A.2d at 1289 (citation omitted).
            Here, although Employer conveyed conflicting information to Claimant,
and Claimant submitted a medical release from her treating surgeon and chiropractor,
Employer clarified that it was still investigating the matter and needed additional
medical documentation before Claimant could return to work. (Finding of Fact at



                                          5
No. 13; N.T. at 8). In assessing Claimant’s testimony, the Board determined that it
“merely establishes that [Claimant] was frustrated regarding Employer’s request for
additional information, not that her situation was so intolerable that a reasonable
person in a similar situation would have quit her employment.” (Board’s decision at
1.)
             In unemployment compensation proceedings, the Board is the ultimate
fact-finder, empowered to determine the weight and credibility of the evidence,
Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa.
Cmwlth. 2000), and the Board’s findings of fact are conclusive on appeal if they are
supported by substantial evidence. Stringent v. Unemployment Compensation Board
of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). The Board’s characterization
of Claimant’s testimony is accurate and its findings of fact are supported by
substantial evidence. Therefore, we agree with the Board that Claimant failed to
establish a necessitous and compelling reason to terminate her employment, i.e., that
her situation was so dire that it would compel a reasonable person to quit. See also
Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281, 1282-
83 (Pa. Cmwlth. 1987) (concluding that a claimant was not entitled to benefits when
she provided the employer with a medical release, the employer replied that work was
not currently available, and the claimant thereafter abandoned her job).
             Claimant further argues that she acted with “ordinary common sense”
when she voluntarily quit employment due to the serious health effects caused by the
stress and pressure of her employment. In her brief, Claimant states that, as a result
of such stress, she developed high blood pressure and was proscribed Lexapro in
order to treat her anxiety and help manage her stress levels.




                                           6
              To establish a health problem as a necessitous and compelling reason to
quit, a claimant must: (1) offer competent testimony that adequate health reasons
existed to justify the voluntary termination, (2) have informed the employer of the
health problem, and (3) be available to work if reasonable accommodations can be
made. A failure to meet any one of these conditions bars a claim for unemployment
compensation. Genetin v. Unemployment Compensation Board of Review, 451 A.2d
1353, 1356 (Pa. 1982).
              Here, Claimant did not offer any testimony that she was suffering from
stress, anxiety, or work-related health problems that made it difficult for her to
continue or resume her employment. Further, Claimant did not present any evidence
that she informed Employer of her work-related health problems. Therefore, we
conclude that Claimant failed to demonstrate that her work-related health problems
constituted a necessitous and compelling reason to terminate employment.3
              Having determined that Claimant’s evidence was insufficient to establish
that she had a necessitous and compelling reason to terminate her employment, we
conclude that the Board did not commit legal error in finding Claimant ineligible for
benefits under section 402(b) of the Law.
              Accordingly, we affirm.



                                               ________________________________
                                               PATRICIA A. McCULLOUGH, Judge

       3
          Finally, Claimant contends that she made several “reasonable efforts” to preserve her
employment by making phone calls, providing necessary documents, and keeping Employer
updated on the status of her recovery. Even if this were true, Claimant has nonetheless failed to
demonstrate the threshold requirement that circumstances existed which produced real and
substantial pressure to terminate her employment. Consequently, we need not address this issue.



                                               7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brenda Ciena,                        :
                 Petitioner          :
                                     :    No. 1918 C.D. 2015
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                 ORDER


           AND NOW, this 2nd day of May, 2016, the August 28, 2015 order of
the Unemployment Compensation Board of Review is affirmed.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
