529 A.2d 1218 | Pa. Commw. Ct. | 1987
Opinion by
Kathleen St. John, claimant, appeals from an order of the Unemployment Compensation Board of Review (Board) denying her claim for benefits.
An employe shall be ineligible for compensation for any week—
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in ‘employment’ as defined in this act: Provided, That a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a necessitous and compelling nature: ....
In unemployment cases, the burden is on the employee to show that he had a necessitous and compelling reason for leaving his employment. Pennsylvania Electric v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 214, 450 A.2d 779 (1982). Claimant, in order to meet her burden of proof must prove that, at the time she left her employment, 1) adequate health reasons existed to justify her absence, 2) she informed the employer of her health problems and, 3) she specifically requested the employer to transfer her to a more suitable position. Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977).
He later states under Reasoning:
Testimony adduced at the hearing reveals that subsequent to her release from the hospital claimant informed the employer she was released by her doctor as able to perform desk work. Claimant further advised the employer she was restricted from lifting and carrying,*565 climbing stairs and driving a car. Claimants duties with the employer necessarily involved lifting and carrying and the employer advised claimant that no desk work was available, a fact of which claimant was, or should have been, aware. Upon her release to return to work, without restrictions claimant resumed working at her former position.
In light of the physical restrictions placed on claimant subsequent to her release from the hospital, claimant cannot be considered to be realistically able to work until released by her physician, effective May 6, 1984. . . .
Claimant is correct in pointing out that the referee misapplied Section 401(d). The test for availability under Section 401(d) is applicable to the local labor market and is not confined to jobs available within employers place of business. The Board erroneously adopted the referees incorrect conclusion. The determination of whether claimant is available for work is primarily a question of fact for the Board. Triangle Publications, Inc. v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 424, 395 A.2d 687 (1978). Neither the referee nor the Board made specific factual findings on the availability of desk jobs in the local labor market; thus we are unable to determine whether claimant met her burden. We must remand for specific factual findings related to whether claimant has effectively demonstrated that despite her limited medical restrictions, she is available for work.
Order
Now, August 20, 1987, the order of the Unemployment Compensation Board of Review, dated September 10, 1984, at No. B-234242, is vacated and the matter is remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
The case of Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982), makes it plain, however, that the third of the requirements set forth in Deiss has been eliminated since the employer must attempt to initiate or effectuate a transfer to more suitable work.