57 Pa. Commw. 302 | Pa. Commw. Ct. | 1981
Opinion by
This is an appeal hy Elaine S. Ruckstuhl (Claimant) from a decision of the Unemployment Compensation Board of Review (Board), which affirmed the referee’s denial of benefits pursuant to Section 402 (b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b)(l), on the ground that Claimant had voluntarily terminated her employment without cause of a necessitous and compelling nature. We agree.
Claimant was last employed by Chilton Company (Employer) as a part-time market research telephone interviewer for a period of eight months ending on June 1, 1979. Claimant was allergic to nicotine and encountered breathing difficulties when exposed to excessive cigarette smoke. Claimant did work in an area where she was exposed to cigarette smoke. Claimant voluntarily terminated employment because, she contends, the smoke caused her to become ill and thus her leave of work was for cause of a necessitous and compelling nature.
Although it is now generally accepted that cigarette smoke may be harmful to smokers and nonsmokers alike, we cannot presume for unemployment compensation purposes that anyone exposed to cigarette smoke in one’s work environment is so physically harmed that a voluntary termination of employment will be automatically justified and unemployment benefits granted. Thus, we must treat this case as any other that involves a voluntary termination for health reasons.
Where the party with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979).
Here, the Board found, inter alia, that Claimant failed to show that adequate health reasons existed to justify termination. Claimant is not required to prove that she was advised by her physician to quit, Pastorius v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 52, 384 A.2d 1039 (1978). However, Claimant must adduce some medical evidence to support her allegations. Rinehart, su
The above [Elaine Ruckstuhl] has tobacco and nicotine allergy and is unable to work in such environment.
The fact that the certificate was obtained after Claimant’s termination does not render it incompetent. Deiss, supra. The certificate must, however, relate to the Claimant’s state of health at the time of her termination. It will be noted that the certificate quoted in its entirety above does not clarify what is meant by “such environment” nor does it sufficiently explain the effect of Claimant’s work environment on her allergy. More importantly, there is nothing in the statement which relates to Claimant’s condition at the time of termination. These deficiencies render the certificate wholly inadequate as medical evidence to support Claimant’s burden of proof. See Bigley v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 569, 393 A.2d 1312 (1978). It is the Board’s function, not ours, to weigh the evidence. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 191, 415 A.2d 425 (1980).
Although Claimant testified that she complained to the Employer that she could not work where she was subject to cigarette smoke and that she had presented an “allergy report” to the Employer, the Employer’s representative denied that any such communication had been made and that any such report had been delivered to the Employer. The Board resolved the conflicting testimony in favor of the Employer; it did not disregard it.
Because Claimant failed the Deiss test by failing to meet the first requirement, we need not discuss
After a careful review of the record, we find that the Board did not disregard competent evidence in making its findings and conclusions. We hereby affirm the Board’s decision to deny Claimant benefits.
Order
And Now, this 4th day of March, 1981, the order of the Unemployment Compensation Board of Review No. B-177245, dated October 31,1979, denying benefits to Elaine S. Ruckstuhl is affirmed.