Appeal, No. 1028 C.D. 1974 | Pa. Commw. Ct. | Apr 22, 1975
Opinion by
This is an appeal by James T. Kapsch (Kapsch) from an order of the Unemployment Compensation Board of Review (Board), dated June 18, 1974, which affirmed a referee’s denial of unemployment compensation benefits.
The essential facts may be succinctly stated. Kapsch was employed as a warehouseman by the Mahla Office Equipment Company (Mahla). Some time in early 1973 Kapsch developed a physical disability, later diagnosed as a hernia, which he alleges precluded him from performing his job with Mahla. On June 8, 1973, Kapsch voluntarily terminated his employment with Mahla, without giving his employer any medical certification of his disability, and without requesting a medical leave of absence.
Kapsch’s application for benefits was denied by the Bureau of Employment Security on the basis of section 402(b) (1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. §802 (b) (1), which reads, in relevant part:
“An employe shall be ineligible for compensation for any week —•
“(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .”
Health problems may establish a “necessitous and compelling” cause for terminating an employment relationship, but the inquiry does not end there. Tollari v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 10 Pa. Commw. 589" court="Pa. Commw. Ct." date_filed="1973-10-10" href="https://app.midpage.ai/document/tollari-v-unempl-comp-bd-of-review-2355423?utm_source=webapp" opinion_id="2355423">10 Pa. Commonwealth Ct. 589, 309 A. 2d 833 (1973). Under Tollari, before he may be eligible for benefits, an employe is obligated to seek work with which his disability will not interfere.
Unless Mahla’s unqualified statement that lighter work was available is patently incredible, or incompetent, the referee and the Board were free to use it as the basis for a finding that such work was in fact available to Kapsch.
This record reveals, and Kapsch concedes, that he did not request a leave of absence, that he did not offer his employer any medical certification of his disability, and that he left work without providing any notice. All of these facts lend support to the general conclusion of the Board that Kapsch “did not take any action to preserve his employment.” They also lend credibility to Mahla’s statement that continuing work was available, since Kapsch’s admitted conduct seems inconsistent with what one would expect of an employe who was seriously interested in preserving his relationship with his employer. The purpose behind requiring that a partially disabled employe make an honest effort to secure lighter work is to insure that the termination is in reality involuntary, as required by the Act. The mere fact that an employe’s termination is in some way related to health problems does not satisfy the requirements of the Act, and does not necessarily entitle a claimant to benefits. The claimant must have no real choice but to leave his employment.
After a careful review of the record, and considering that the burden was upon Kapsch to show that his ter
We therefore
Order
And Now, this 22nd day of April, 1975, it is hereby ordered that the order of the Unemployment Compensation Board of Review, dated June 18, 1974, denying benefits to James J. Kapsch, is affirmed.