Opinion
No. 2122 C.D. 2011
09-25-2012
Chris J. Blackwell, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Chris J. Blackwell (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated September 7, 2011. The Board affirmed a Referee's decision, which denied Claimant's request to backdate his application for unemployment compensation benefits based on Sections 401(b) and 401(c) of the Pennsylvania Unemployment Compensation Law. We now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 801(b) and 801(c).
In September 2010, Claimant applied for unemployment compensation benefits following his discharge from military service in June 2010. Claimant filed his application for benefits before he received his DD-214 form, evidencing that he left military service with an honorable discharge. Thereafter, Claimant failed to file his biweekly claims for benefits. During this time period, Claimant did not receive any unemployment compensation payments. In February 2011, upon receipt of his DD-214 form, Claimant requested backdating of his claim weeks to the week ending September 25, 2010, but he did not request to have his application backdated to June 13, 2010, nor did he request benefits back to the week ending June 19, 2010. A Referee granted Claimant's request to backdate his claim weeks to the weeks ending September 25, 2010, through October 30, 2010.
A DD-214 is a federal military document entitled "Certificate of Release or Discharge from Active Duty" that lists, among other things, the type of separation from military service, the reason for the discharge, and the character of service. Rosler v. Unemployment Comp. Bd. of Review, 542 A.2d 624, 625 (Pa. Cmwlth. 1988). A former member of the military is only entitled to state unemployment compensation benefits if he has been discharged or released from military service under honorable conditions. Id.; 5 U.S.C. § 8521(a). The DD-214 is final and conclusive evidence of such discharge or release. Rosler, 542 A.2d at 627. Claimant's DD-214, therefore, is final and conclusive evidence of such discharge or release. Claimant's DD-214 is not part of the certified record, although it appears that the DD-214 form indicated that Claimant was honorably discharged with a release date of June 12, 2010.
It appears that the Referee granted the February 2011 request to backdate in his Decision No. UCX-11-09-A-3181, which decision is neither the subject of this appeal nor included in the certified record of this case.
On May 3, 2011, Claimant requested backdating of his application for unemployment compensation benefits to June 13, 2010, along with backdating for the waiting week ending June 19, 2010, and the claim weeks ending June 26, 2010, through September 4, 2010. By notice of determination dated May 26, 2011, the Scranton UC Service Center (Service Center) denied Claimant's request to backdate his application and claim weeks. Claimant appealed, and a Referee conducted a hearing.
Following a hearing, the Referee issued the following findings of fact:
1. The claimant requested backdating for an application for benefits to be effective June 13, 2010.
2. The claimant requested backdating for the waiting week ending June 19, 2010 and the compensable weeks of June 26, 2010 through September 4, 2010.
3. The claimant's reason for requesting backdating is the claimant contends he was told by an individual or individuals at the service center that he could not open his claim until the Department of Labor & Industry received his DD-214.
4. In February 2011, the claimant filed a request to backdate his application for benefits for the weeks ending September 25, 2010 to October 30, 2010.
5. The undersigned Referee granted backdating for the weeks ending September 25, 2010 to October 30, 2010 in Appeal No. UCX-11-09-A-3181.
6. The claimant received an unemployment compensation handbook in the mail.
7. At the time the claimant requested backdating for the claim weeks ending September 25, 2010 to October 30, 2010 he should have asked for backdating for the weeks he is now attempting to claim.
8. Since February 2011, the claimant knew and/or should have known of the backdating requirement.
9. The claimant did not request backdating in the above-captioned case until May 3, 2011.
10. The claimant had also filed a previous claim for unemployment compensation benefits in Pennsylvania prior to June 2010.(Certified Record (C.R.), Item No. 9).
Based upon the above findings of fact, the Referee denied Claimant's request for backdating. In so doing, the Referee reasoned as follows:
At hearing the claimant contended he was misled and/or misinformed by the service center concerning the need to file for weeks. The Referee notes that the claimant appeared before the undersigned Referee on another request to backdate in Appeal No. UCX-11-09-A-3183. In that case, in February 2011 the claimant filed a request to backdate to the weeks of September 25, 2010 through October 20, 2010. Having carefully considered the testimony presented as well as taking official notice of the decision in Appeal No. UCX-11-09-A-3181 the Referee finds and concludes that the claimant knew and/or should have known of the backdating requirement at least in March of 2011 but instead the claimant waited until May 3, 2011 in order to request unemployment compensation benefits for the weeks his is now claiming. Accordingly, the Referee finds and concludes that the claimant knew and/or should have known of the requirement to file for benefits back to March of 2011 and since the claimant failed to do so at the time, the claimant's subsequent request to backdate for additional weeks is denied as the information provided by the claimant does not follow within any of the enumerated exceptions contained in Title 34 of the Pennsylvania Code, Section[s] 65.33 and 65.41.(Id.)
Claimant appealed the Referee's decision to the Board. The Board affirmed the Referee's decision and adopted and incorporated the Referee's findings of fact and conclusions of law into its decision. Claimant then filed the subject petition for review with this Court.
On appeal, Claimant argues that the Board erred in denying his request to backdate his application for benefits and waiting and claim weeks. The Board counters that Claimant, as a result of the delay in requesting that his application be backdated, failed to prove an exception necessary to backdate his application.
"Our scope of review is limited to determining whether constitutional rights have been violated, errors of law committed, or whether necessary findings of fact are not supported by substantial evidence." Mitcheltree v. Unemployment Comp. Bd. of Review, 635 A.2d 701, 703 (Pa. Cmwlth. 1993). Further, where a petitioner fails to challenge the Board's factual findings, they are conclusive on appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth. 1996).
First, we note that "[t]he burden of proving eligibility for unemployment compensation is on the claimant." Colello v. Unemployment Comp. Bd. of Review, 492 A.2d 769, 771 n.7 (Pa. Cmwlth. 1985). As we explained in Ascheim v. Unemployment Compensation Board of Review, 694 A.2d 4 (Pa. Cmwlth. 1997), appeal denied, 553 Pa. 700, 718 A.2d 786 (1998), Section 401 of the Law lists four qualifications that must be satisfied by a claimant before the claimant may become eligible for unemployment compensation, including that the claimant "has made a valid application for benefits with respect to the benefit year for which compensation is claimed and has made a claim for compensation in the proper manner and on the form prescribed by the department." Section 401(c) of the Law. "It is well-settled that the general rule in cases involving late filing for unemployment compensation benefits is that a claimant who files late is ineligible, unless misled by unemployment compensation officials." Menalis v. Unemployment Comp. Bd. of Review, 712 A.2d 804, 805 (Pa. Cmwlth. 1998).
Moreover, the Department of Labor and Industry (Department) specifically promulgated regulations that govern the mechanics of filing claims for compensation and the backdating of applications and claim weeks. With regard to applications for benefits, Section 65.42 of the Department's regulations, 34 Pa. Code § 65.42, provides that an application for benefits is effective on the first day of the calendar week in which the application is filed or deemed filed in accordance with Section 65.41 of the Department's regulations, 34 Pa. Code § 65.41. Under Section 65.41, an application for benefits allows an application to be deemed constructively filed when the Board finds that "the claimant was prevented or persuaded, through no fault of his own, from filing the application" as a result of several enumerated reasons, including "[t]he refusal of the office to accept the application as a result of an error or mistake." 34 Pa. Code § 65.41(c)(5).
We acknowledge that Sections 65.33 and 65.41 of the Department's regulations, 34 Pa. Code §§ 65.33 and .41, were amended on February 12, 2011, and that, as of that date, the section of the Department's regulations that applies to backdating is Section 65.43(a) of the Department's regulations, 34 Pa. Code § 65.43(a). Because Claimant's claims pre-date the amendment, Sections 65.33 and 65.41 are applicable here.
34 Pa. Code § 65.41 provides, in part:
(c) An application for benefits may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented or persuaded, through no fault of his own, from filing the application because of one or the following reasons:(Emphasis added.)
(1) The inaccessibility of the local public employment office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant is filing an application shall permit not more than 2 weeks of predating.
(2) The closing of an office due to a holiday or by official pronouncement may permit not more than 2 weeks of predating.
(3) The inability of an office to take the claimant's application on the day on which he reported for the purpose, or the postponement of application taken by the office for administrative reasons may permit not more than 6 weeks of predating.
(4) Erroneous advice by his employer that he would be recalled to work within 1 week may permit not more than 2 weeks of predating.
(5) The refusal of the office to accept the application as a result of an error or mistake shall permit not more than 52 weeks of predating.
With regard to filing claims for claim weeks, Section 65.43 of the Department's regulations, 34 Pa. Code § 65.43, provides that claims for compensation shall be filed biweekly in accordance with a schedule of consecutive 2-week periods set by the Department. Under Section 65.33 of the Department's regulations, 34 Pa. Code § 65.33, "a claim may be backdated if the claimant was prevented, through no fault of his own, from filing his claims during the week immediately subsequent to the week for which the claim is filed because of one of several reasons." Mitcheltree v. Unemployment Comp. Bd. of Review, 635 A.2d 701, 704-05 (Pa. Cmwlth. 1993). Included in the reasons is "[t]he refusal of an office to accept a claim as a result of an error or mistake." 34 Pa. Code § 65.33(a)(4).
34 Pa. Code § 65.33 provides, in part:
(a) A claim for a week of total, partial, or part-total unemployment may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented, through no fault of his own, from filing his claims during the week immediately subsequent to the week for which the claim is filed because of one or more of the following reasons:(Emphasis added.)
(1) The inability of the local public employment office to handle currently all claims, or the postponement of claims-taking by the local office for administrative reasons shall permit not more than 6 weeks of predating.
(2) The inaccessibility of the office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant resides shall permit not more than 2 weeks of predating.
(3) The closing of an office due to a holiday or by official pronouncement shall permit not more than 2 weeks of predating.
(4) The refusal of an office to accept a claim as a result of an error or mistake shall permit not more than 52 weeks of predating.
(5) Sickness or death of another member of the claimant's immediate family or an act of God shall permit not more than 2 weeks of predating, provided the claimant was available for work during the week for which the claim is being filed.
(6) Illness or injury which incapacitates the claimant shall permit predating for the duration of the incapacitation plus 2 weeks but in no instance for more than 52 weeks, provided the claimant meets the eligibility requirements during the week for which the claim is being filed.
(7) If the claimant is employed not more than 4 weeks of predating shall be permitted. Where a claimant is filing claims for partial or part-total benefits not more than 4 weeks predating shall be permitted, commencing with the date on which the employer paid wages for the claim week in question.
(8) An appeal of a claimant from disqualification may permit not more than 4 weeks of predating while the appeal is pending.
First, as to Claimant's request to backdate his application to June 2010, Claimant testified before the Referee that representatives of the Service Center informed Claimant that he could not file an application for benefits until he received his DD-214 form. This information appears to have been in error, because another representative later accepted an application for benefits from Claimant in September 2010, well before Claimant received his DD-214 form. Moreover, the Board does not challenge the contention that the Service Center initially misinformed Claimant. If that testimony were considered alone and found to be credible, it could support a determination that the Service Center refused to accept his application "as a result of error or mistake" when he first attempted to file for benefits in June 2010.
Specifically, Claimant testified that he contacted the Service Center in June 2010 to inquire about filing a claim petition—i.e., an application. (C.R., Item No. 8 at 4, 5, and 7.) At that time, a Service Center representative informed Claimant that, because he had separated from the military, he could not file a claim until he received the DD-214 form. (Id.) Claimant explains in his brief that he continued to call every few weeks, and he received the same information each time until he called in September. (Petitioner's Br. at 5.) Claimant contends that during a phone call that he placed to the Service Center in September 2010, another Service Center representative informed him that the Service Center could open a claim, but that the claim would not be valid until the Service Center received the DD-214 form. Claimant states that due to delay beyond his control, he did not receive the necessary DD-214 form until approximately six (6) months after he was discharged. (C.R., Item No. 8 at 7.) The Board appears to have credited Claimant's testimony that he attempted to apply for benefits in June 2010, but he was misinformed by the Service Center that he could not do anything until he received his DD-214 form. Furthermore, according to the Board, the claim record supports Claimant's contention that eventually he did file an application for benefits in September 2010, but he failed to file his biweekly claims for benefits.
Our analysis, however, does not end there, because once Claimant received his DD-214 form, he delayed in requesting that his application be backdated. During the hearing before the Referee in this matter, the Referee noted that he had conducted the previous hearing relating to Claimant's earlier request to backdate his claim weeks to September 2010. (C.R., Item No. 8 at 5-8.) The Referee questioned Claimant as to whether he recalled the Referee informing him at the earlier hearing that Claimant needed to contact the Service Center to inform it of the specific additional weeks for which he was requesting compensation benefits. (Id.) Claimant does not challenge on appeal the Referee's finding or conclusion that "[C]laimant knew and/or should have known of the requirement to file for benefits back to March of 2011," and, therefore, that finding is conclusive on appeal. Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 494 (Pa. Cmwlth. 2000). Thus, after Claimant knew or should have known of his need to request that his application be backdated to June 2010 if he wished to request unemployment compensation benefits for that earlier time-period, Claimant delayed two and one-half (2½) months before making such request. Claimant provides no explanation for his delay.
Importantly, Section 65.41 of the Department's regulations provides for the backdating of applications and claims weeks, respectively, where the claimant was "prevented or persuaded, through no fault of his own, from filing" based on one of several enumerated reasons. Thus, even if we were to agree that the Service Center initially refused to accept the application due to an error or mistake on its part, Claimant failed to establish that his continuing delay in filing (beginning in March 2011) was "through no fault of his own." We agree, therefore, with the Referee and Board that Claimant failed to prove that he met the requirements for backdating an application for benefits as set forth in Section 65.41 of the Department's regulations. Because the Referee and Board properly denied Claimant's request to backdate the application to June 2010, it follows that they also could not grant a request to backdate claims weeks to June 2010.
We also note that during the subject hearing before the Referee, Claimant testified that he has returned to work. (C.R., Item No. 8 at 6.) Section 65.33(a)(7) of the Department's regulations provides that when a claimant is employed, backdating is limited to four (4) weeks.
Accordingly, we affirm the order of the Board.
Claimant also argues that the Referee in the earlier decision erred in only granting partial backdating to September 5, 2010. Claimant fails to appreciate that the Referee had before him only a request to backdate claim weeks to September 2010, pursuant to Section 65.33 of the Department's regulations, not a request to backdate an application to June 2010, pursuant to Section 65.41 of the Department's regulations. Moreover, assuming arguendo, if the Referee had erred in his earlier decision, then Claimant's recourse would have been to pursue that issue in an appeal of that earlier decision. Furthermore, we note that during the subject hearing before the Referee, Claimant alluded to the fact that the backdating that the Referee granted following his earlier hearing may have been "reversed," presumably by the Board. (C.R., Item No. 8 at 7.) The status of the earlier decision, however, has no bearing on the Court's analysis set forth above.
Claimant further argues that the Board failed to understand the nature of the DD214 form and that, because processing of his claim depended upon receipt of the DD214 form for evidence of honorable discharge and because the Board does not challenge the accuracy of the information contained in the DD214 form, the Board should have accepted the release date set forth in the DD214 form and backdated his application and waiting and claims weeks to conform with his release date. Claimant also appears to argue that the DD214 form is the theoretical equivalent of a voucher, entitling him to unemployment compensation benefits from the date of his release, regardless of compliance with Pennsylvania's statutory and regulatory provisions. Claimant also appears to argue that he wrongfully suffered a forfeiture of his entitlement to unemployment compensation benefits. Claimant offers no legal support for these arguments, and we are not aware of such support. The Court, therefore, rejects those arguments.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 25th day of September, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge