           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Corderman,                             :
                            Petitioner        :
                                              :
              v.                              :   No. 1208 C.D. 2015
                                              :   Submitted: November 20, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: December 23, 2015

              Sharon Corderman (Claimant), representing herself, petitions for
review of an order of the Unemployment Compensation Board of Review (Board)
denying her unemployment compensation (UC) benefits under Section 402(b) of
the UC Law (Law) on the basis she voluntarily quit her employment. 1 Claimant,
who suffered from chronic medical conditions and fatigue at the time she resigned
her position with the Tioga Publishing Company (Employer), contends the Board
erred in holding she did not have a necessitous and compelling reason for leaving
her job. Claimant further asserts the Board erred in determining she failed to
exhaust all her alternatives prior to leaving her employment. While sensitive to
Claimant’s situation, we are constrained to 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 “[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).
                                  Background
            In affirming the referee’s decision, the Board adopted the referee’s
findings and conclusions. Claimant last worked for Employer as a newspaper
editor in a full-time capacity. As of January 9, 2015, Claimant’s last day of work,
she earned $30,000 per year.


            Claimant, a salaried employee, did not work set hours scheduled by
Employer. Rather, Claimant could set her own hours as long as she fulfilled all
duties and responsibilities for creating and publishing the newspaper. On average,
Claimant worked approximately 50-60 hours per week to meet Employer’s
expectations.


            In September 2012, Claimant began to suffer from a chronic
methicillin-resistant staphylococcus aureus (MRSA) infection and anemia.
Claimant’s medical condition included facial lesions, swelling and inflammation.


            In view of Claimant’s medical condition, Employer allowed Claimant
to work from home as much as needed to avoid too much interaction with the
public.   Although Claimant remained under a doctor’s care for treatment for
MRSA, anemia and fatigue, her doctor did not advise her to limit her work hours.


            As a result of Claimant’s worsening medical conditions, she
voluntarily resigned her employment on January 9, 2015. Claimant believed the
amount of hours she worked for Employer contributed to her fatigue.




                                        2
               Prior to leaving, Claimant did not discuss any alternatives with
Employer. Claimant, however, remained able to perform any type of work, except
manual labor, for up to 40 hours per week.


               Claimant applied for UC benefits. Initially, the Department of Labor
and Industry (Department), through its local UC service center, issued a notice of
determination finding Claimant eligible for benefits under Section 402(b)
(voluntary quit for necessitous and compelling reason) and Section 401(d)(1)2 (able
to work and available for suitable work) of the Law. The Department determined
Claimant informed Employer of her work limitations, and Employer did not offer
Claimant alternative work.


               Employer appealed, and the Board scheduled a referee’s hearing.
Before the referee, Claimant testified on her own behalf. Employer’s publisher
and Claimant’s supervisor, David Sullens (Publisher), testified for Employer.


               Following the hearing, the referee issued a decision and order
affirming the UC service center’s determination to the extent it ruled Claimant
eligible for benefits under Section 401(d)(1). However, the referee reversed the
service center and ruled her ineligible for benefits under Section 402(b). In his
decision, the referee reasoned (with emphasis added):

               In the present case, [Claimant] had a medical condition
               which caused facial lesions as well as swelling and
               inflammation to her face. [Employer] was aware of
               [Claimant’s] medical condition and her diagnosis, and
      2
          43 P.S. §801(d)(1).



                                          3
             allowed [Claimant] to work at home when needed to
             avoid interaction with the public and others. [Claimant]
             was also able to set her own hours, and did not have any
             specified number of hours that she would have to work a
             week as long as she was able to fulfill her duties as the
             editor. Not only was it [Claimant’s] choice to work 50 to
             60 hours per week, it was also her choice to voluntarily
             leave her employment without discussing any other
             options available to her with [Employer]. Therefore, the
             referee does not find that [Claimant] exhausted all
             alternatives prior to severing the employer/employee
             relationship, and made a personal choice to leave her
             employment when continuing work was available to her.

Referee’s Dec., 3/13/15, at 2.


             On appeal, the Board, adopting and incorporating the referee’s
findings and conclusions, affirmed. Claimant petitions for review.3


                                      Discussion
                                     A. Argument
             Claimant contends the Board erred in holding she did not have a
necessitous and compelling reason for leaving her job. Claimant also maintains the
Board erred in determining she failed to exhaust all her alternatives prior to leaving
her employment. In order to establish a necessitous and compelling reason to quit,
a claimant must show: circumstances existed that produced a real and substantial
pressure to terminate employment; such circumstances would compel a reasonable


      3
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Wise v. Unemployment Comp. Bd. of Review, 111 A.3d
1256 (Pa. Cmwlth. 2015).



                                            4
person to act in the same manner; the claimant acted with ordinary common sense;
and, the claimant made a reasonable effort to preserve her employment. Collier
Stone Co. v. Unemployment Comp. Bd. of Review, 876 A.2d 481 (Pa. Cmwlth.
2005).


             Here, Claimant asserts, at the time she resigned, she suffered from
chronic medical conditions that prevented her from adequately performing her job
duties. In particular, Claimant suffered from MRSA, which is contagious and
caused Claimant to suffer facial lesions, which drained throughout the day.
Claimant’s facial lesions prevented her from interacting with the public.      In
addition, Claimant suffered from anemia and fatigue, which prevented her from
completing her job duties in a competent manner.


             Claimant would eventually undergo successful treatment, including
scheduled surgery. However, at the time of her decision to leave her employment
in December 2014, Claimant’s worsening condition rendered her unable to
continue in the position she held. Therefore, Claimant argues, a reasonable person
in her situation at that time would not have continued to work because of her
medical condition.


             Claimant also contends she acted with common sense.         Ordinary
common sense dictates that a person with a contagious disease should not interact
with others. Further, because her condition continued to deteriorate, Claimant
knew she needed to change her current position and end her employment to
preserve her health.



                                        5
             With respect to her efforts to preserve her employment, Claimant
asserts that in June 2014, she spoke with Employer about her condition following a
particularly bad flare-up of facial inflammation. She also emailed Employer a
photo of herself.


             Thereafter, Claimant and Employer spoke briefly about her health on
several occasions over the following months. In September 2014, Claimant asked
her doctor for a referral to a specialist after Employer suggested Claimant find a
different doctor because her condition failed to improve. Further,   in   an   email
response to her resignation         letter, Employer acknowledged Claimant’s
deteriorating health and indicated he was glad Claimant was taking some time to
care for herself.


             However, Claimant admits she had no specific conversations with
Employer about alternatives to her workload or her ability to continue to fulfill her
work duties. Claimant asserts Employer could not lighten her workload or lessen
her hours because Employer had no other employees to whom it could delegate her
work.


             Claimant further asserts she could not work from home because the
job of a newspaper editor and reporter is to cover the news, attend functions and
events, and interact with the public. As the only person on staff, Claimant could
not avoid public interaction on a regular or daily basis.




                                          6
            Summarizing, Claimant contends her deteriorating health prevented
her from staying in her position as Employer’s editor because she could no longer
physically or mentally handle the job. Therefore, Claimant argues she did have a
necessitous and compelling reason for voluntarily quitting her job.      As such,
Claimant urges the Board erred in finding her ineligible for benefits under Section
402(b) of the Law.


                                   B. Analysis
            An employee who claims to have left employment for a necessitous
and compelling reason and seeks UC benefits under Section 402(b) of the Law has
the burden of proof and must show that:

            (1) circumstances existed which produced real and substantial
            pressure to terminate employment; (2) such circumstances
            would compel a reasonable person to act in the same
            manner; (3) the claimant acted with ordinary common sense;
            and, (4) the claimant made a reasonable effort to preserve her
            employment.


Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of
Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Conversely, Employer has no
burden of proof in a voluntary quit case. Johnson v. Unemployment Comp. Bd. of
Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).


            Medical problems can provide necessitous and compelling reasons for a
voluntary quit. Fox v. Unemployment Comp. Bd. of Review, 522 A.2d 713 (Pa.
Cmwlth. 1987). The claimant maintains the burden of proving the existence of a
necessitous and compelling cause. Nolan v. Unemployment Comp. Bd. of Review,


                                          7
797 A.2d 1042 (Pa. Cmwlth. 2002). In order to prevail in such a case, the claimant
must prove that she communicated the nature of her medical problem to the employer
and explained why she could not continue to perform her regularly assigned duties.
Id. If the claimant does not make this initial effort, the employer can not properly
exercise its managerial judgment in locating suitable and available work. Bailey v.
Unemployment Comp. Bd. of Review, 653 A.2d 711 (Pa. Cmwlth. 1995).


               Here, Claimant testified she came under a doctor’s care for MRSA and
anemia in 2012. Referee’s Hr’g, Notes of Testimony4 (N.T.), 3/12/15, at 7. Claimant
further testified she worked an average of 50-60 hours per week and this contributed
to her fatigue. Referee’s Dec., Findings of Fact (F.F.) Nos. 4, 7; N.T. at 7. However,
Claimant’s doctor did not place any restrictions on Claimant’s work duties or limit
the hours she could work. F.F. No. 6; N.T. at 7.


               In late June 2014, Claimant advised Employer of her continuing health
issues and sent Employer a photo; in response, Employer allowed Claimant to work
from home as much as she needed. F.F. No. 5; N.T. at 7-8. Because Claimant saw
Publisher on occasion and Claimant had a chronic facial infection, she testified her
condition was obvious. N.T. at 8.


               Nevertheless, Claimant resigned seven months later in January 2015. At
no time prior to her resignation did Claimant inform Employer that she had to quit
because of her deteriorating health. F.F. No. 8; N.T. at 8. To that end, the referee
had the following discussion with Claimant (with emphasis added):

      4
          Certified Record, Item No. 10.



                                           8
             R. So, if that was the end of June of 2014, what
             happened between that period and January 9, 2015 that
             caused you to leave?

             C. I continued to become more and more fatigued and
             run down. I was on antibiotics throughout that entire
             time and it was not getting better. My health was
             continuing to deteriorate.

             R. Okay. Did you have a discussion with [Publisher] or
             anyone else, you know, as your health was deteriorating,
             any time before you ended up leaving, but was after June
             of 2014? Did you let them know what was going on?
             Did you say anything?

             C. We saw each other on occasion, so it – he – I mean it
             was clear – because the situation was on my fac[e], it was
             kind of obvious, what was happening and it’s – I didn’t
             complain, I guess or say a whole lot about it. I wanted it
             very much to get better.

             R. Okay, but did you say anything, as to, you know, with
             the amount of hours that I’m working, I have a lot of
             fatigue, you know, I’m tired all the time, anything like
             that? I mean I understand your testimony as to being
             based upon the medical condition being on your face that
             it was obvious you had a medical condition, but did you
             discuss, you know, what was going on with the fatigue
             and being tired or anything like that?

             C. We – no, I guess neither of us really brought it up or
             discussed it in any detail.

N.T. at 8.


             Furthermore, based on Publisher’s testimony, the referee found
Employer did not set Claimant’s hours; Employer required only that Claimant fulfill
her job duties and responsibilities. F.F. No. 4; N.T. at 12-13. Claimant agreed
Employer never required a mandatory minimum of hours. N.T. at 13. However,

                                         9
Claimant deemed it her obligation to do the best job she could to assemble a weekly
paper from start to finish, and given her deteriorating health, she could no longer do
that. Id.


             A claimant who voluntarily quits her job for health reasons must inform
her employer of her health problems prior to leaving employment in order to provide
the employer with an opportunity to accommodate the claimant’s problems. Genetin
v. Unemployment Comp. Bd. of Review, 451 A.2d 1353 (Pa. 1982); Lee Hosp. v.
Unemployment Comp. Bd. of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). Once this
burden is met, the burden then shifts to the employer to find a reasonable
accommodation for the employee. Elshinnaway v. Unemployment Comp. Bd. of
Review, 317 A.2d 332 (Pa. Cmwlth. 1974). However, a claimant’s failure to inform
her employer that she intends to quit because of her health problems bars a claim for
UC benefits under Section 402(b) of the Law. Anne Kearney Astolphi DMD, Inc. v.
Unemployment Comp. Bd. of Review, 995 A.2d 1286 (Pa. Cmwlth. 2010).


             Here, Claimant acknowledges she did not discuss with Employer her
deteriorating health or its effect on her ability to continue performing the duties of her
position prior to her voluntary resignation in January 2015. F.F. No. 8; N.T. at 8.
Claimant attributed her inability to maintain her employment in large part to the
excessive hours she worked each week. However, Claimant did not afford Employer
an opportunity to address her health needs or concerns with respect to her job duties
and responsibilities.    As such, it is unknown whether Employer could have
accommodated Claimant during her period of illness. In short, Claimant failed to
make a meaningful attempt to preserve her employment by providing Employer a



                                           10
reasonable opportunity to find a suitable accommodation for Claimant’s health
problems.


             Although we sympathize with Claimant in her battle with MRSA, we
nevertheless acknowledge that Claimant’s failure, to inform Employer of her
deteriorating health and its effect on her ability to continue performing her job duties,
deprived Employer of any opportunity to make a reasonable attempt at finding a
suitable accommodation for Claimant’s condition. Genetin; Kearney Astolphi; Lee
Hosp. Claimant testified that when she sent her letter of resignation to Employer, she
was hoping some other option would be made available. N.T. at 14. However,
Claimant’s conscious choice to terminate her employment without informing
Employer of the specific nature of her illness foreclosed Employer from pursuing any
alternatives. Bailey. Consequently, we are constrained to agree with the Board that
Claimant’s failure to make reasonable efforts to preserve her employment before her
voluntary quit in January 2015 rendered her ineligible for UC benefits under Section
402(b) of the Law. Genetin; Kearney Astolphi; Lee Hosp.


             For this reason, we affirm the Board’s order.




                                         ROBERT SIMPSON, Judge




                                           11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Corderman,                     :
                       Petitioner     :
                                      :
           v.                         :   No. 1208 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER

           AND NOW, this 23rd day of December, 2015, for the reasons stated in
the foregoing opinion, the order of the Unemployment Compensation Board of
Review is AFFIRMED.




                                     ROBERT SIMPSON, Judge
