Rohde v. Unemployment Comp. Bd. of Review

• Decision Date: 31 August 2011
• Docket Number: No. 2629 C.D. 2010,2629 C.D. 2010
• Parties: Thomas Rohde, Petitioner v. Unemployment Compensation Board of Review, Respondent
• Court: Pennsylvania Commonwealth Court

Thomas Rohde, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

No. 2629 C.D. 2010

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: May 6, 2011
FILED: August 31, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

Petitioner Thomas G. Rohde, Jr. (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed in part and reversed in part a decision of an Unemployment Compensation Referee (Referee). The Board affirmed the Referee's determination that Claimant cannot be denied benefits pursuant to Section 402(b) of the Law,¹ pertaining to voluntary termination without cause of a necessitous and compelling nature. The Board, however, reversed the Referee's determination that Claimant was eligible for benefits, and, ultimately, denied benefits pursuant to Section 401(d)(1) of the Law,² which pertains to whether Claimant is able and available for suitable work. The sole issue on appeal is whether Claimant is ineligible for

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benefits pursuant to Section 401(d)(1) of the Law. For the reasons set forth below, we reverse the Board's order.

Claimant applied for unemployment compensation benefits after voluntarily terminating his employment as a dispatcher for Health Ride, a division of Tri County Transportation, Inc. (Employer). The Altoona UC Service Center (Service Center) issued a determination, finding Claimant to be ineligible for benefits under Section 402(b) of the Law. Claimant appealed the Service Center's determination, and a Referee conducted evidentiary hearings at which both parties testified.

Claimant and Leann Rohde (Claimant's wife) testified to the circumstances surrounding Claimant's separation from employment. Claimant testified that he is currently employed at Rohde's Personal Care, and that he began working there on March 17, 2010, after his March 5, 2010 separation from Employer. (Certified Record (C.R.), Item 7.) In addition, Claimant testified that he has maintained part-time employment with East Hills Ambulance since 1988. (Id.) Claimant testified that he underwent a cardiac catheterization on March 4, 2010, and, thereafter, his physician wrote him a prescription to attend cardiac rehabilitation. (Id.) The cardiac rehabilitation program required that Claimant attend four to five therapy sessions per week for one and a half to two hours per session. (Id.) Claimant also testified that his illness required him to take additional medications, which made driving long distances unsafe. (Id.) Claimant testified that on March 9, 2010, his wife went to Employer's office to discuss Claimant's health condition and to request a change in his work hours on his behalf because he could not travel at that time; Claimant was still recovering from his medical procedure. (Id.) Claimant testified that in order to attend cardiac

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rehabilitation and continue his employment, he would need to either come into work late or leave work early due to the hours the cardiac rehabilitation facility operated. (Id.) Claimant testified that if Employer accommodated his scheduling needs, then he could continue working. (Id.) Claimant testified that he believed that Employer would not accommodate his scheduling needs because Employer stressed that prior accommodations it made for him relating to prior illnesses were unsatisfactory to Employer. (Id.) Further, Claimant stated that Employer claimed that Claimant would not be permitted to leave early because it would be unfair to the other employees. (Id.) Claimant testified that due to the travel distance and not being allowed to leave early, he was forced to quit for health reasons. (Id.)

Claimant's wife provided testimony regarding her conversation with David Ligda (Director of Health Ride) and Bob Koban (Operations Manager) after Claimant's hospitalization. Claimant's wife testified that she requested that Employer accommodate Claimant's work schedule so that he could attend cardiac rehabilitation. (Id.) She testified that Employer replied that Claimant's schedule could not be accommodated because it would be unfair to the other employees. (Id.)

Employer presented the testimony of Debora Blake (Human Resources (HR) Manager) and the Director of Health Ride in support of its position. The HR Manager testified that she did not understand why Claimant felt Employer would not accommodate his scheduling needs because Employer had accommodated Claimant's scheduling conflicts in the past for other illnesses. (Id.) During prior illnesses, Employer allowed Claimant to work from home and provided him with equipment to perform his job from his home office. (Id.) The HR Manager testified that she believed that Employer could have made similar

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arrangements, but Employer was not given the opportunity to consider Claimant's needs and restrictions before Claimant quit. (Id.) The HR Manager further noted that Employer was not made fully aware of Claimant's restrictions and never received any information from Claimant's physician. (Id.)

The Director of Health Ride testified that the discussion he and Mr. Koban had with Claimant's wife centered on the financial burden that was going to result because Claimant's wife would be required to drive him to and from work, not that Claimant was unable to work because of health reasons. (Id.) The Director of Health Ride testified that Claimant's wife was advised to discuss different ways that Employer could accommodate Claimant and to report back for further discussion with Employer. (Id.) The Director of Health Ride also stated that, "we made no promises at that time because it would be unfair to other employees who were working a full-time job . . . ." (Id.) The Director of Health Ride testified that Claimant's next communication with Employer was his resignation. (Id.)

Following the hearings, the Referee reversed the Service Center's determination and awarded benefits pursuant to Section 402(b) of the Law. (Id. at Item 8.) The Referee concluded that Claimant voluntarily quit his employment for reasons of a necessitous and compelling nature. (Id.) Employer appealed the Referee's decision to the Board. The Board made the following relevant findings:

1. Claimant was last employed as a dispatcher by Tri County Transportation, Incorporated until March 3, 2010. His final rate of pay was $28,000.00 per year.
2. On March 3, 2010, Claimant went to his doctor due to chest pains. An echocardiogram was conducted revealing Claimant had cardiomyopathy.

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3. On March 4, 2010, Claimant underwent a cardiac catheterization with a diagnosis of congestive heart failure/cardiomyopathy.
4. Claimant kept Employer informed of his medical issues.
5. On March 7, 2010, Claimant had a follow-up appointment, where he was informed that he would require cardiac rehabilitation on a daily basis.
6. On or about March 9, 2010, Claimant's wife met with Employer to discuss Claimant's return to work.
7. Claimant's wife informed Employer that he could not work before 11:00 a.m. each day or after approximately 2:00 p.m. each day because of various medical appointments that he had to go to.
8. His wife further informed Employer that she was not sure whether he could remain employed because it was not financially feasible to drive to and from work for only four hours per day.
9. Employer stated that it did not know whether it could accommodate Claimant, but that he and his wife had to decide what they wanted Employer to do.
10. Claimant voluntarily terminated his position because of his medical appointments and his various medical appointments.

(C.R., Item 10.)

The Board affirmed the Referee's decision in part and reversed in part. (Id.) The Board affirmed the Referee's determination that Claimant established a necessitous and compelling reason to voluntarily quit his employment. (Id.) The Board, therefore, concluded that Claimant could not be denied benefits pursuant to Section 402(b) of the Law.³ (Id.) The Board, however,

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reversed the Referee's determination that Claimant was eligible for unemployment compensation benefits. (Id.) The Board concluded that Claimant was ineligible for benefits pursuant to Section 401(d)(1) of the Law, which requires an employee to be able and available for suitable work and reasonably attached to the job market. (Id.) The Board determined that Claimant's medical condition, which required extensive doctor's appointments, limited the hours Claimant was available to work, thus, rebutting his presumption of availability. (Id.) The Board concluded that Claimant failed to offer sufficient credible testimony or evidence establishing that he was actually able and available for work or that there was a job he could perform within his restrictions. (Id.) Further, the Board determined that Claimant failed to establish that he was reasonably attached to the job market. (Id.) Ultimately, the Board concluded that Claimant was ineligible for benefits pursuant to Section 401(d)(1) of the Law. (Id.) Claimant now petitions this Court for review of the Board's order.

On appeal,⁴ Claimant essentially argues that (1) the Board's findings of fact are not supported by substantial evidence,⁵ and (2) the Board erred in

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concluding that Claimant was ineligible for benefits under Section 401(d)(1) of the Law.⁶

First, we will address whether...