Opinion
No. 367 C.D. 2012
03-08-2013
Shannon Cameron, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Shannon Cameron (Claimant) petitions for review of the February 10, 2012 order of the Unemployment Compensation Board of Review (Board), affirming the decision of a referee that Claimant is ineligible for unemployment benefits under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
Claimant was employed by Pennsylvania Counseling Services (Employer) as a full-time school-based outpatient therapist from August 20, 2007, to March 17, 2011. (Reproduced Record (R.R.) at 14a.) Claimant received a salary with a production bonus of 50 percent of collections from each therapy session for the 2010-2011 school year. (R.R. at 70a-71a; 156a.) After completing a therapy session with a student or a student's family, Claimant was required to submit bills to Employer's funding sources, which were typically insurance companies. (R.R. at 19a.) Claimant's job description provided, in part, that her administrative responsibilities included completing the necessary client record paperwork and client billing information in a timely manner. (Finding of Fact (F.F.) No. 2.)
Claimant signed a copy of her job description in acknowledgement and agreement on August 20, 2007. (R.R. at 138a.)
Claimant requested and received additional training on completing paperwork when she was first hired, and she properly completed billings until late 2010. (F.F. No. 14.) However, Employer disciplined Claimant in November 2010 for problems with the accuracy and timeliness of her submitted paperwork and billing information. (R.R. at 68a-69a.) From December 2010 to February 2011, Claimant failed to turn in her paperwork as required, which affected Employer's reimbursement from funding sources. (F.F. No. 12.)
Employer's policy regarding appropriate billing and paperwork is included in the record. (R.R. at 148a-50a.)
Employer became aware of allegations that Claimant was not reporting for scheduled appointments or following Employer's policies and received complaints from a school principal regarding Claimant's conduct and ability to perform her job. In response, on March 1, 2011, Employer placed Claimant on probation, during which she was required to follow all of Employer's policies and procedures. Employer had a four-level progressive discipline policy culminating in an employee's discharge, and this was the third disciplinary action taken against Claimant under the policy. (F.F. Nos. 7-10.) Employer also had a fraud policy stating that employees who commit fraud or whose conduct is grossly negligent and appears fraudulent will be subjected to a four-level disciplinary progression, which may include termination. (F.F. No. 4.) The policy defines fraudulent provisions of services as those that result in fraudulent billing to the funding sources. (F.F. No. 5.)
Claimant received the two prior levels of discipline in accordance with Employer's policy. (F.F. No. 8.) The second level was the discipline that Claimant received from Employer in November 2010. (R.R. at 69a.)
A copy of Employer's policy regarding fraud is included in the record. (R.R. at 139a-41a.)
During Claimant's probationary period, Employer's internal auditors conducted a review of Claimant's paperwork and discovered that she had submitted bills for services allegedly provided to two different children at the same time on the same day, that she had used incorrect codes to correspond with the services she provided, and that she had billed for two different types of sessions on the same day and at the same time on multiple occasions. (F.F. Nos. 15-16.) Claimant's submission of paperwork instructing the billing staff to bill for two separate sessions for the same time period is considered double-billing and constitutes fraudulent behavior under Employer's fraud policy. (F.F. No. 17.)
Claimant met with Patricia Young (Young), Employer's Vice President of Outpatient Services, and Michelle Williams (Williams), Employer's Director of Risk Management, to discuss the allegations of her fraudulent paperwork and misconduct on March 17, 2011. During the meeting, Claimant stated that she had merely made paperwork mistakes that she could correct by changing the billing codes, and when Williams pointed out that changing the codes would not account for double billing for work allegedly completed during the same periods of time, Claimant said that the instances of double billing were unintentional errors. (R.R. at 25a; 36a.)
After the meeting, Employer suspended Claimant without pay on March 17, 2011, pending an investigation of her misconduct. Claimant then applied for unemployment benefits, and the local service center determined on April 7, 2011, that she was not ineligible for benefits under section 402(e) of the Law. (R.R. at 161a.) Employer's further investigation revealed more errors in Claimant's paperwork, and Employer terminated Claimant's employment on April 18, 2011, for violating Employer's fraud policy and for gross negligence. (F.F. No. 20.) Employer appealed the service center's determination, and a referee held a hearing on July 8, 2011, at which Claimant, represented by counsel, and three witnesses for Employer, including Young and Williams, testified.
At the hearing, Williams testified that Claimant reviewed and signed Employer's fraud policy and was terminated for violating the policy. (R.R. at 29a.) Williams explained that the policy is in place because Employer must submit proper paperwork to its funding sources to bill for its services, and fraudulent paperwork or paperwork that appears fraudulent could cause a funding source to pull its funding from Employer, resulting in Employer losing clients and its license to operate with a particular funding source. (R.R. at 26a.) She stated that if an employee submits paperwork that Employer later discovers is improper, as in Claimant's case, then Employer must refund the money to the funding source. (Id.) Williams testified that, as a result of Claimant's paperwork errors, Employer was unable to bill for many services Claimant may have provided. (R.R. at 38a.)
Young testified that Claimant never offered a credible explanation to substantiate the inconsistencies in her paperwork, and, due to her improper paperwork, Employer took a loss on Claimant's services because Employer paid Claimant for the services she allegedly provided but the funding source retrieved the money it paid to Employer. (R.R. at 50a-53a.)
Claimant testified that she filled out hundreds of papers in an average month, and sometimes an internal auditor would review her paperwork for errors and she would correct them. (R.R. at 57a.) She further testified that she did not intentionally fill out the forms with false information and that the mistakes were accidental. (R.R. at 63a.) Claimant stated that she was hospitalized four times during the period from September 2010 through April 2011, and was on medical leave for a period of time due to a mental health condition; Claimant believed that stress and her mental health issues affected her ability to properly perform her job functions. (R.R. at 55a-56a; 64a-65a.)
In a decision dated August 5, 2011, the referee reversed the local service center's determination. The referee found that Employer had a policy, known to Claimant, that defined fraud as: deception practiced so as to secure unfair or unlawful gain, including billing for services that were not performed in their entirety according to the rules and regulations of the funding source for that service; falsifying records in any way; documenting more than once for a single service; and not providing a service according to the description of the procedure code indicated for each clinical session. (F.F. No. 3.) The referee found that the policy was in place because fraudulent or potentially fraudulent billing may cause Employer to be permanently expelled from its funding sources. (F.F. No. 4.) The referee also found that Claimant submitted bills for services allegedly provided to two different children on the same date and time; that she was using incorrect codes to correspond with the services that she was providing; and that on multiple occasions, Claimant's chart documentation showed that she double-billed for services, all of which constituted fraudulent behavior under Employer's policy. (F.F. Nos. 15-17.) In addition, the referee found that because Claimant was paid fifty-percent of all the collections billed, she benefited financially from the double-billing. (F.F. No. 19.) Based on these findings, the referee concluded that Claimant was discharged for violating Employer's reasonable workplace policy, which amounted to willful misconduct. The referee also concluded that Employer proved that Claimant's negligence manifested a substantial disregard for Employer's interests and Claimant's obligations to Employer, also constituting willful misconduct. (R.R. at 158a.) Therefore, the referee held that Claimant was ineligible for benefits under section 402(e) of the Law.
Claimant appealed to the Board, asserting that her medical condition caused her to make paperwork errors. The Board affirmed the referee's decision and adopted and incorporated the referee's findings and conclusions. (R.R. at 160a.) The Board specifically rejected Claimant's testimony that her errors were unintentional. The Board also held that there was insufficient credible evidence in the record to establish that Claimant's medical condition was the cause of her errors. The Board stated that Claimant's testimony alone was insufficient to prove that her mental health condition caused her to commit the errors, and, therefore, Claimant did not demonstrate good cause for violating Employer's policy. The Board denied Claimant's request for reconsideration, and Claimant appealed to this Court.
Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Claimant argues that she did not commit willful misconduct because her paperwork errors were merely accidental mistakes made in the course of filling out many papers and forms. She argues that because Employer's witnesses testified that they did not know whether Claimant filled out the forms with a fraudulent or deceptive intent, and Claimant testified that she did not intentionally complete the paperwork fraudulently, there can be no finding of willful misconduct. Contending that her conduct was negligent, but not intentional, Claimant argues that Employer failed to establish that she committed willful misconduct. We disagree.
The Law does not define the term "willful misconduct," but our courts have defined it as including: the wanton or willful disregard of the employer's interests; the deliberate violation of the employer's rules; the disregard of standards of behavior that an employer can rightfully expect from an employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1214 (Pa. Cmwlth. 1996). Whether a claimant has committed willful misconduct is a question of law, reviewable by this Court. Harris v. Unemployment Compensation Board of Review, 447 A.2d 1060 (Pa. Cmwlth. 1982).
The employer bears the burden of proving that the employee's actions rose to the level of willful misconduct. Stauffer v. Unemployment Compensation Board of Review, 455 A.2d 300 (Pa. Cmwlth. 1983). Where, as here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of a reasonable work rule and its violation. Webb, 670 A.2d at 1214. Once an employer establishes that a claimant violated a reasonable work rule, the burden then shifts to the claimant to establish that she had good cause to violate the rule or that the rule was unreasonable, and thus the denial of unemployment benefits is improper. Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12, 17 (Pa. Cmwlth. 2009). Good cause for violating a work rule or standard is established where the action of the employee is justified or reasonable under the circumstances. Id. at 17.
Here, Employer's witness testified that Employer had a policy regarding fraud or conduct that appears fraudulent, that Claimant was discharged for violating the policy, and that the policy exists because fraudulent or potentially fraudulent conduct jeopardizes Employer's ability to be paid by its funding sources. Employer's witness further testified that Claimant was aware of the policy. Claimant does not dispute these facts, and she does not challenge the reasonableness of the policy. Thus, the Board correctly concluded that Employer satisfied its burden to prove that Claimant violated a reasonable work rule. Webb.
However, citing Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 827 A.2d 422 (2003), and Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993), Claimant argues that a determination of willful misconduct requires evidence of intent and that Employer presented no such evidence here. Claimant maintains that her testimony demonstrates that her mistakes were unintentional and therefore do not amount to a willful violation of Employer's policy.
Claimant also contends that there can be no finding of willful misconduct because Employer did not uniformly enforce its policy. In support, she argues that she and other employees were previously permitted to correct their mistakes and paperwork errors. However, Claimant had already been placed on disciplinary level three, which is a probationary period requiring her to follow all procedures, and she did not do so. Additionally, Williams testified that employees are in fact terminated for potential fraud, even if they have not progressed through the disciplinary levels, because fraud is considered a level four offense that warrants immediate termination, and the referee found that Employer's past practice was to terminate employees for suspected fraud. (R.R. at 27a, 41a; F.F. No. 6.) Thus, Claimant's contention is meritless.
As previously noted, however, once Employer established that Claimant violated its reasonable policy, Claimant had the burden of proving that her actions were justified or reasonable. Roberts. Because the Board rejected Claimant's testimony as not credible, she failed to meet her burden of proof. The Board is the ultimate fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253 (Pa. Cmwlth. 2004). In making credibility determinations, the Board may accept or reject testimony of any witness, in whole or in part, and is free to reject even uncontradicted testimony as not being credible. Teitell v. Unemployment Compensation Board of Review, 546 A.2d 706, 711 (Pa. Cmwlth. 1988).
Relying on Roberts, Claimant also argues that the Board erred in disregarding her uncontradicted testimony that her mistakes were caused by her mental health condition and multiple hospitalizations during the time frame at issue. In Roberts, the Board stated generally that it resolved all conflicts in the testimony in the employer's favor and found that the claimant committed willful misconduct; however, the employer's witnesses did not contradict the claimant's testimony and the Board did not expressly reject it as not credible. Therefore, we reversed, holding that the claimant's uncontradicted testimony was sufficient evidence to establish good cause for his violation of the employer's work rule. Roberts is distinguishable from this case in significant part because here, the Board specifically rejected Claimant's testimony as not credible.
Moreover, while Claimant correctly states that a claimant need not always present expert testimony from a physician to prove good cause based on an illness, Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (explaining that a claimant can establish that a physical illness constitutes good cause for noncompliance with an employer's rule by introducing competent evidence, and competent evidence can be the claimant's own testimony and/or supporting documents), here it is clear that Claimant's testimony is insufficient to prove that her mental illness provided good cause for violating Employer's policy.
In Brady v. Unemployment Compensation Board of Review, 539 A.2d 936 (Pa. Cmwlth. 1988), the claimant was denied unemployment benefits under section 402(e) of the Law. On appeal to this Court, the claimant argued that he was not ineligible for benefits based on willful misconduct because his mental illness constituted good cause for his misconduct. Id. at 938. We held that in order to establish that a mental illness constitutes good cause, a claimant must present testimony by a person possessing sufficient skill, knowledge, or experience in the field of mental disorders that, in his opinion, the misconduct was a result or manifestation of the mental illness. Id. at 938-39. We explained that when it is less than obvious that a claimant's misconduct is attributable to his mental disorder, such testimony is necessary to establish a causal connection between the disorder and the conduct. Id. at 939.
Similarly, in Jordon v. Unemployment Compensation Board of Review, 684 A.2d 1096 (Pa. Cmwlth. 1996), this Court held that in order to show that a mental health condition constituted good cause for a claimant's actions, the claimant had to establish a relationship between the disorder and the claimant's ability to perform his job or comply with the employer's rules through evidence from a qualified person. Id. at 1100.
Here, Claimant did not offer any testimony, expert or otherwise, identifying or describing her mental disorder or establishing a link between her mental disorder and her failure to correctly complete and submit paperwork and billing information. Claimant's testimony that she was stressed and suffering from a disorder is insufficient to prove good cause based on mental health issues. Brady; Jordon. Thus, the Board properly concluded that Claimant failed to prove good cause for violating Employer's policy.
Claimant also argues that the referee erred by failing to make any findings of fact regarding her mental health or medical condition during the relevant time period. However, the Board specifically found that Claimant's testimony was insufficient to prove that her mental health condition caused her to commit the errors. Moreover, in Brady, this Court held that where, as here, there is nothing in record to support a finding that the claimant had good cause for his actions, the Board does not err by holding that the claimant's conduct constituted willful misconduct without making specific findings of fact and conclusions of law on the issue of good cause. Brady, 539 A.2d at 938. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 8th day of March, 2013, the order of the Unemployment Compensation Board of Review, dated February 10, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge