Opinion
No. 901 C.D. 2013
11-13-2013
Stephanie E. Bennett, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Stephanie E. Bennett (Claimant) petitions, pro se, for review of an April 24, 2013 order of the Unemployment Compensation Board of Review (Board) that denied her unemployment compensation benefits. The Board determined that, while Claimant was not ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she had a necessitous and compelling reason for terminating her employment at Coldwater Creek (Employer), Claimant was ineligible for benefits under Section 401(d)(1) of the Law because she was not available for suitable work. We vacate and remand for further proceedings in accordance with this opinion.
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, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Section 401(d)(1) of the Law provides, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to an inability to work. 43 P.S. § 801(d)(1).
Claimant was employed as a store manager by Employer from August 2008 through December 2, 2012. (Record Item (R. Item) 11, Referee's Decision and Order, Finding of Fact (F.F.) ¶1.) Several months prior to Claimant leaving Employer, her supervisor, the district manager, went on a temporary leave and was replaced by an interim manager who imposed new, stricter work rules on Claimant. (F.F. ¶¶3-6.) At the same time, Claimant began suffering from stress and anxiety relating to her employment and undergoing treatment with her physician and a psychotherapist. (F.F. ¶¶7-9.) As work demands increased in November 2012, Claimant's stress and anxiety also increased and Claimant's physician and therapist recommended that she terminate her employment. (F.F. ¶¶10-15.) Claimant gave notice that she was leaving Employer on December 1, 2012 and she was paid through December 8, 2012. (F.F. ¶¶16-17.)
Claimant registered for unemployment benefits with the Department of Labor and Industry (Department) Unemployment Compensation Service Center on December 9, 2012. (R. Item 2, Internet Initial Claim.) Claimant indicated on her initial claim that she left her employment for health reasons related to anxiety and stress, but Claimant also noted that she was available for work and able to work. (Id.) Claimant continued to make regular claims through the week of February 16, 2013, and reported wages from a part-time job starting with the week ending January 19, 2013. (R. Item 1, Claim Record.) The Service Center issued a Notice of Determination on February 13, 2013 denying Claimant benefits under Section 402(b) of the Law because she did not have necessitous and compelling reason for leaving her employment. (R. Item 5, Notice of Determination.) The Notice of Determination did not address the issue of Claimant's availability for suitable work. (Id.)
Claimant appealed the determination and a hearing was held before a Referee on March 12, 2013, at which both Claimant and Employer appeared to give evidence. (R. Item 10, Hearing Transcript (H.T.).) At the hearing, Claimant submitted a letter from her physician dated December 3, 2012 indicating that she suffered from severe anxiety and stress and was unable to work at that time. (R. Item 10, Claimant's Exhibit 1.) Claimant testified that her physician released her to return to work on January 1, 2013, when her symptoms had improved. (H.T. at 21.) Claimant further testified that she was accepted for part-time employment as a manager at a retail store on January 15, 2013, and that this job became permanent in February 2013. (Id.)
On March 12, 2013, the Referee issued a decision and order, in which Claimant was determined to be ineligible for unemployment compensation benefits. The Referee first concluded that Claimant's separation from employment was voluntary, but that her decision to leave work to avoid a mental health breakdown constituted a necessitous and compelling reason for voluntarily terminating her employment. (R. Item 11, Reasoning at 2.) However, the Referee then concluded that Claimant was not available for suitable work and thus ineligible for benefits for the waiting week ending December 15, 2012 under Section 401(d)(1). (Id.) The Referee based this conclusion on the findings that Claimant's primary care physician had instructed her not to work beginning on December 3, 2012 and she was unable to return to work until early January 2013. (Id.; F.F. ¶¶19-20.) Despite determining that Claimant was unavailable for work, the Referee stated that the "agency may wish to reconsider the claimant's eligibility for benefits under Section 401(d)(1) of the Law for subsequent weeks in accordance with the above Findings." (R. Item 11, Reasoning at 2.)
On March 14, 2013, Claimant appealed the Referee's decision to the Board. (R. Item 12, Petition for Appeal from Referee's Decision.) Claimant recognized in her petition for appeal that she could not submit new evidence after the hearing, but, following up on the Referee's statement that the agency may wish to reconsider her eligibility for subsequent weeks, requested that the Board reconsider her claims for benefits from January 1, 2013 through February 16, 2013. (Id.)
On April 24, 2013, the Board issued an order and decision in which it adopted the Referee's findings of fact and conclusions and affirmed the Referee's decision without further analysis. (R. Item 13, Board's Decision and Order.) At the end of its decision, the Board stated: "The Board notes that the claimant may be interested in submitting a medical note to the Department indicating that she was able to work as of January 1, 2013." (Id.)
On appeal, Claimant does not argue that the Board erred in finding her ineligible for unemployment compensation benefits for the week ending December 15, 2012. Instead, Claimant requests that she be granted benefits for the period from January 1, 2013 through February 16, 2013, the date that she achieved subsequent full-time employment. In her brief, Claimant explains that her belief that she is entitled to benefits after January 1, 2013 is based on the Board's recommendation that she submit a letter from her physician documenting her availability after January 1, 2013, and she attaches a May 1, 2013 letter from her primary care physician that, though not properly before this Court, indicates that she was released and available for work as of January 1, 2013. (Claimants Br. at 7, 26.)
Our standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001).
The Board argues that Claimant was properly found ineligible for unemployment compensation benefits under Section 401(d)(1) for the first week in which she made a claim, the waiting week ending December 15, 2012. The Board argues that this is the only week relevant in this matter, citing the statement of this Court in Frey v. Unemployment Compensation Board of Review, 451 A.2d 563 (Pa. Cmwlth. 1984), that "[e]ach claim week stands on a separate and individual basis and the claimant must demonstrate her availability for work during that particular week." Id. at 564. Thus, in the Board's view, any evidence relating to Claimant's availability to work after the waiting week is extraneous to this appeal.
We agree with the Board that, to the extent Claimant seeks consideration here of her availability for work after January 1, 2013 through the submission of the letter from her physician, such consideration is outside this Court's scope of review. The appellate review of this Court is restricted to the evidence contained in the certified record, and any evidence not submitted to the Referee will not be considered. Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990). The letter was not drafted until May 1, 2013, weeks after the hearing took place, and thus is not part of the record on appeal.
This matter should be remanded for reconsideration of Claimant's availability for work after January 1, 2013, however, because the only issue at the hearing was whether Claimant had a compelling and necessitous reason for voluntarily terminating employment under Section 402(b); thus, the Referee's sua sponte ruling on Claimant's availability under Section 401(d)(1) was improper. Section 101.87 of the regulations provides that the Referee "shall consider the issues expressly ruled upon in the decision from which the appeal was filed." 34 Pa. Code § 101.87. The Referee has the authority to hear additional issues with the consent of the parties, or if the parties are neither surprised nor prejudiced. Id.; Henderson v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 1332 C.D. 2012, filed October 8, 2013), 2013 WL 5526049, at *17; Sharp Equipment Company v. Unemployment Compensation Board of Review, 808 A.2d 1019, 1025 (Pa. Cmwlth. 2002). The relief for a violation of Section 101.87 is a remand for a reconsideration of the additional issue. Henderson, 2013 WL 5526049, at *17; Anthony v. Unemployment Compensation Board of Review, 506 A.2d 501, 503-04 (Pa. Cmwlth. 1986). The purpose of this regulation is to prevent a claimant from having to defend or explain her conduct without fair warning and an opportunity to prepare. Anthony, 506 A.2d at 503; Goodman v. Unemployment Compensation Board of Review, 447 A.2d 1127, 1128 (Pa. Cmwlth. 1982).
Here, the Notice of Determination found Claimant ineligible for benefits under Section 402(b) of the Law because she voluntarily quit without a necessitous and compelling reason. (R. Item 5, Notice of Determination.) Availability for suitable work under Section 401(d)(1) was not addressed in the Notice. At the hearing, the Referee announced that the issue to be addressed was whether Claimant had a necessitous and compelling reason under Section 402(b). (H.T. at 2.) Claimant did testify regarding her mental health after her last day of work with Employer, but at no point during the hearing did the Referee state that Claimant's availability for work under Section 401(d)(1) was at issue in the proceedings. Though Claimant was prepared to testify regarding the health reasons for her departure from Employer and submitted two letters from medical health professionals attesting to those reasons, (H.T. at 20-21 & Claimant Exs. 1, 2.), there is no indication that Claimant was aware prior to the hearing that she would need to provide testimony or submit evidence regarding the impact that her health had on her availability for work after she left Employer. Cf. Henderson, 2013 WL 5526049, at *18 (claimant was aware of alternate grounds of termination that became an issue at the hearing when claimant addressed it in the pre-hearing questionnaire); Sharp Equipment, 808 A.2d at 1026 (claimant became aware of additional issue when it was raised in the employer's appeal of the notice of determination). Thus, Claimant was both surprised and prejudiced by the discussion of her availability for suitable work under Section 401(d)(1) of the Law.
Our view that remand is proper in this case is buttressed by the Board's admission that Claimant may have eligibility for benefits after she was medically cleared to work by her physician on January 1, 2013. Indeed, the Board adopted the Referee's finding of fact, based on Claimant's testimony at the hearing, that Claimant's work status changed in early January 1, 2013 and that she was available to return to work at that time. (F.F. ¶20; N.T. at 21.) Moreover, both the Board and the Referee advised Claimant that benefits may be available for the period after January 1, 2013 and that reconsideration for this period is appropriate. (R. Item 11, Reasoning at 2; R. Item 13, Board's Decision and Order.) Though the Board concedes that Claimant may be entitled to benefits for this period, it argues in its brief that Claimant erred in taking an appeal from the Board's decision and instead her "remedy is to contact the Department so that the Department may make a new determination regarding her allegation." (Board Br. at 9.)
Claimant, who has represented herself throughout these proceedings, is not an expert in the sometimes confusing procedures of the Department and the Board. As a result, Claimant misunderstood the Board's nebulous suggestion that she submit medical verification of her subsequent availability for work "to the Department." Contrary to Claimant's reasonable interpretation, this statement was actually intended as an instruction that Claimant should forego an appeal and, instead, file entirely new claims with the Service Center. Her failure to understand the Board's directive is especially unsurprising in light of the fact that any new claims would be wholly duplicative of the claims she previously submitted through February 16, 2013, when she gained full-time employment. (R. Item 13, Board's Decision and Order; R. Item 1, Claim Record.) The Board chose not to remand to the Referee to take additional evidence regarding Claimant's availability for work after January 1, 2013, despite the fact that the Board has the express authority to do so. See 34 Pa. Code §§101.106, 101.108. Such "slavish adherence to technical and artificial rules" by the Board frustrates the remedial nature of the Law. Unemployment Compensation Board of Review v. Jolliffe, 474 Pa. 584, 586, 379 A.2d 109, 109-10 (1977) (quoting Glen Alden Coal Company v. Unemployment Compensation Board of Review, 51 A.2d 518, 520 (Pa. Super. 1947)); see also Renne v. Unemployment Compensation Board of Review, 499 Pa. 299, 305 n.4, 453 A.2d 318, 321 n.4 (1982) ("It is axiomatic that the provisions of the Unemployment Compensation Law must be liberally construed to provide the broadest possible benefits to those who experienced forced unemployment."). The Board acknowledges Claimant is likely eligible for benefits after January 1, 2013, yet has failed to instruct Claimant on the proper procedure to make a claim for those benefits, thus allowing this unnecessary appeal to proceed.
Accordingly, we vacate the decision of the Board and remand with directions that the Board allow Claimant the opportunity to submit the May 1, 2013 letter from her physician as evidence and make a determination on Claimant's eligibility for compensation benefits from January 1, 2013 through February 16, 2013, with appropriate consideration given to any necessary deduction in the amount of benefits because of Claimant's part-time employment wages after January 15, 2013.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 13th day of November, 2013, the Order of the Unemployment Compensation Board of Review (Board) in the above-captioned matter is hereby VACATED and this matter is REMANDED for further proceedings with directions that the Board consider evidence relating to Petitioner's claims for unemployment compensation benefits for the period of January 1, 2013 through February 16, 2013 and make a determination as to Petitioner's eligibility for benefits for that period.
Jurisdiction Relinquished.
/s/ _________
JAMES GARDNER COLINS, Senior Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE BROBSON
I respectfully dissent. Because the week ending December 15, 2012, is the only week for which the eligibility of Stephanie E. Bennett (Claimant) for unemployment compensation benefits is at issue in this matter, and Claimant does not argue that the Unemployment Compensation Board of Review (Board) erred in finding her ineligible for benefits for that particular week, I would affirm the decision of the Board.
Moreover, because Claimant concedes that she is ineligible for benefits for the week of December 15, 2012, I would reach the above conclusion notwithstanding the fact that the Referee and the Board based their determinations on a section of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.§§ 751-914, which the Service Center did not consider.
In contrast, the majority concludes that the Board's decision should be vacated and the matter remanded for reconsideration of Claimant's availability for work between January 1, 2013, and February 16, 2013, a time period that was not at issue below. As the Board correctly notes, however, "[e]ach claim week stands on a separate and individual basis and the claimant must demonstrate her availability for work during that particular week." Frey v. Unemployment Comp. Bd. of Review, 451 A.2d 563, 564 (Pa. Cmwlth. 1982). Furthermore, "[e]ach week of unemployment is the subject of a separate claim." Presbyterian SeniorCare v. Unemployment Comp. Bd. of Review, 900 A.2d 967, 974 (Pa. Cmwlth. 2006). As noted above, the only claim week at issue here is the week ending December 15, 2012.
The circumstances of this case are similar to those presented to us in Lyde v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 2375 C.D. 2012, filed July 25, 2013), wherein the Board found the claimant to be ineligible for benefits for the particular claim week at issue, but suggested that the claimant "'notify the Department' regarding evidence of her availability and ability to work." Lyde, slip op. at 1. Subsequently, "perhaps in response to the Board's statement, [the c]laimant filed a request for reconsideration with the Board, and attached a letter from her physician stating that she was physically able to work when he examined her on October 2, 2012." Id. The Board denied the request and we affirmed, explaining that the only week at issue was the week ending July 14, 2012, and that the claimant's "status as of October 2, 2012, [wa]s not at issue with regard to the current claim before th[e] Court." Id. at 3. We further noted that the claimant's "condition subsequent to July 14, 2012 is relevant to any claims she may have filed, or may yet file, for additional weeks of unemployment," and that the claimant's "potential entitlement to compensation for those weeks [wa]s not before the Court at th[at] time." Id.
Although Lyde is an unreported panel decision and, thus, does not constitute binding authority, such decisions may be used for their persuasive value. See Section 414 of the Commonwealth Court's Internal Operating Procedures (authorizing the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as binding precedent).
Similar to the claimant in Lyde, Claimant has misunderstood the Board's suggestion to submit "a medical note to the Department indicating that she was able to work as of January 1, 2013," (Board Decision at 1), and has instead submitted the note to this Court, requesting that she be found eligible for benefits from January 1, 2013, through February 16, 2013. In so doing, Claimant is improperly attempting to establish in this appeal her eligibility for benefits for claim weeks that are not before this Court. As intimated by the Court in Lyde, the appropriate course of action is for Claimant to submit a new claim to the Department for the time period of January 1, 2013, through February 16, 2013. Consequently, I respectfully disagree with the majority's decision to vacate the Board's decision and remand the matter for consideration of Claimant's eligibility for benefits from January 1, 2013, through February 16, 2013, as the majority's approach is founded on reasoning not advanced by Claimant and provides relief for claim weeks that are not at issue in this matter.
In Lyde, we also explained that "if Claimant has not filed unemployment claims for subsequent weeks, believing that she was litigating that entitlement in this action, there may be a question of timeliness." Lyde, slip op. at 3 n.4. Nevertheless, we explained that the Board's "advice was less than clear insofar as it failed to advise Claimant that she needed to file a new claim for any weeks after the week ending July 14, 2012," and that "[h]opefully, the Office of Unemployment Compensation Benefits w[ould] consider this if Claimant request[ed] an extension to file a claim for th[o]se weeks." Id. I note that these observations also apply to the matter presently before the Court. --------
For the foregoing reasons, I would affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge