Opinion
No. 701 C.D. 2014
03-30-2015
Ellen Gutman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Ellen Gutman (Claimant) petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's determination ruling her financially ineligible to receive benefits, pursuant to Section 404 of the Pennsylvania Unemployment Compensation Law (Law). We affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804.
Claimant had been employed at Thomas Jefferson University Hospital (Employer) as a research assistant; on January 10, 2011, she commenced a leave of absence, which continued until January 16, 2012. (Certified Record (R.) Item 4, Employer's Response to Request for Employer Wage/Credit Week Information.) Claimant resumed work with Employer in January 2012, but on February 10, 2012, she was laid off from her job. Following her claim for unemployment benefits as of February 5, 2012, Claimant received, first, a determination from the Unemployment Compensation Service Center (Center) mailed August 5, 2013 indicating that she was financially eligible for benefits, with eighteen (18) credit weeks earned during her base year (R. Item 5, Notice of Financial Determination, 8/5/2013), and next, a revised determination from the Center mailed the following day, August 6, 2013, indicating that she was financially ineligible for benefits, with only fifteen (15) credit weeks earned during her base year. (R. Item 6, Claimant's Petition for Appeal from Financial Determination w/Attachments, Notice of Financial Determination, 8/6/2013; R. Item 12, Referee's Hearing: Transcript of Testimony, 9/24/2013 (N.T.) at 2.)
At the time of the application for benefits in question here, Section 4(g.1) of the Law, added by the Act of July 10, 1980, P.L. 521, defined "credit week" as "any calendar week in an individual's base year with respect to which he was paid in employment as defined in this act, remuneration of not less than fifty dollars ($50)...." 43 P.S. § 753(g.1) (emphasis supplied.) In Section 4(l)(1) of the Law, "employment" is defined as "all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as officer of a corporation." 43 P.S. § 753(l)(1). "Remuneration" is not statutorily defined, but has been judicially interpreted to mean "payment for services performed." Allegheny Ludlum Corporation v. Unemployment Compensation Board of Review, 634 A.2d 587, 589 (Pa. 1993).
Section 4(a) of the Law defines "base year" as "the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year." 43 P.S. § 753(a). Section 4(b) defines "benefit year" as the fifty-two consecutive week period beginning with the day the valid Application for Benefits is filed. 43 P.S. § 753(b).
At the time of the application for benefits in question here, Section 404(c) of the Law provided in relevant part that any employee with fewer than sixteen (16) credit weeks during the employee's base year shall be ineligible to receive any amount of compensation. 43 P.S. § 804(c). The language of Sections 4(g.1), 401(a) and 404(c) of the Law was amended by the Act of June 17, 2011, P.L. 16, No. 6, §§ 1, 5, and the Act of June 12, 2012, P.L. 577, No. 60, §§ 1, 10, 11; these amendments were not effective until December 31, 2012, and therefore do not apply here.
Claimant appealed and, following the referee hearing at which Claimant participated by telephone and Employer did not testify, the referee made findings of fact establishing that: (i) Claimant's application for unemployment compensation benefits was filed effective February 5, 2012, thus establishing a base year period from October 1, 2010 to September 30, 2011, and (ii) Claimant earned at least $50 in covered employment during thirteen (13) weeks in the fourth quarter of 2010 and during the first two (2) weeks in the first quarter of 2011. (R. Item 15, Referee's Decision and Order, Findings of Fact (F.F.) ¶¶ 1-3.) The referee further found, however, that Claimant began a paid leave of absence on January 10, 2011 and received disability benefits while away from work, and therefore did not earn any credit weeks during the second and third quarters of 2011. (Id. F.F. ¶ 4.) With a total of fifteen (15) credit weeks during her application base year period, the referee concluded that Claimant failed to satisfy the requirement of Section 404(c) of the Act, and is therefore financially ineligible for unemployment compensation benefits. (Id., Reasoning.) At the referee hearing, the referee explained that the Center was permitted to issue a revised determination in the event they have made a mistake or lacked correct information, and clarified that the revised Notice of Determination issued on August 6, 2013 supersedes the August 5, 2013 Notice of Determination. (R. Item 12, N.T. at 5.)
The referee asked Claimant if, during her established base year period, she took a leave of absence or went on disability benefits, and Claimant initially replied in the negative, stating that she was receiving sick pay during a part of that period, but that it was not reported by Employer. (R. Item 12, N.T. at 6.) When questioned further on this subject, Claimant characterized the payments received as "short-term disability," and averred that during an earlier referee hearing in conjunction with her application for benefits effective August 12, 2012, both the referee and the Center had confirmed that "sick pay or short-term disability pay [are] considered wages...for up to six months." (Id. at 6-7.)
The Center is permitted to revise a Notice of Determination before it becomes final, so long as no appeal has been filed; no revised determinations can be issued after the fifteen-day appeal period has expired. Larry Pitt & Associates, P.C. v. Unemployment Compensation Board of Review, 712 A.2d 827 (Pa. Cmwlth. 1998), appeal denied, 738 A.2d 459 (Pa. 1999); Garza v. Unemployment Compensation Board of Review, 669 A.2d 445 (Pa. Cmwlth. 1995), appeal denied, 675 A.2d 1253 (Pa. 1996).
Claimant appealed to the Board, and the Board affirmed the referee, incorporating the referee's findings and conclusions. (R. Item 16, Board's Order of 2/27/2014.) The Board further noted that our Court "has held that because disability payments are made on account of a disability rather than in consideration for services a claimant provides for an employer, they do not constitute wages for purposes of base year calculations." (Id.)
Claimant requested reconsideration, which was denied by the Board. (R. Item 18, Ruling on Request for Reconsideration of Board's Decision.) On appeal to this Court, Claimant argues that she is entitled to additional credit weeks, which she alleges were earned during the second and third quarters of 2011, and is therefore eligible for unemployment compensation benefits. Claimant bases her argument on an earlier application for benefits filed as of August 12, 2012, on which she received a Notice of Determination mailed October 9, 2012 deeming her eligible for benefits with nineteen (19) credit weeks.
Our review of the Board's decision is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 n.3 (Pa. Cmwlth. 2007).
The Certified Record does not contain the Notice of Determination for her application for benefits as of August 12, 2012, mailed October 9, 2012. However, in her Petition for Appeal, Claimant references this Notice of Determination, as well as other related appeals that have been resolved or are still awaiting resolution. In her brief, Claimant states that she received permission from an employee of the Board to include the Notice of Determination, as well as a hearing transcript from an earlier referee hearing, other referees' decisions, and Board orders, all emanating from her initial application for benefits. Claimant filed an Application to Supplement the Record with her brief, and this Court granted her application by order dated November 7, 2014. We shall, therefore, refer to specific documents included as part of Claimant's brief that are not included in the Certified Record. The October 9, 2012 Notice of Determination is reproduced in Claimant's Brief at pages 59-60.
In her brief, Claimant avers that after she was laid off from work in February, 2012, she contacted the Center and was told that she had insufficient wages, and that "sick pay is not considered wages." (Claimant's Brief at 18, Claimant's Reply Brief at 1.) Claimant avers that she continued to communicate with the Center over the next six months, "trying to receive more information and get in touch with people in charge," and after "an attorney wrote a letter to [the Center] requesting a hearing," she applied for benefits and received the October 9, 2012 Notice of Determination for the application for benefits effective August 12, 2012. Attached to Claimant's brief are the notes of testimony from a referee hearing on three related appeals held on January 14, 2013, at which Claimant testified that after she was told that she had insufficient wages in February, 2012, she consulted an attorney who advised her that she would have to wait until the severance pay she received, following her February 2012 layoff up until June 15, 2012, could be counted in her base year calculation in order to qualify for unemployment compensation benefits. (1/14/2013 Referee Hearing Transcript of Testimony at 9, reproduced in Claimant's Brief at page 61.)
The three appeals considered were: (i) Appeal No. 376 - an appeal from a Notice of Determination that disapproved Claimant's request for a full-time weekly wage on the application for benefits effective August 12, 2012; (ii) Appeal No. 581 - an appeal from an October 12, 2012 decision denying Claimant's request to backdate claim weeks ending August 18, 2012 through September 8, 2012 as untimely; in a Board Order mailed June 7, 2013, the referee's January 31, 2013 decision dismissing Claimant's appeal as untimely was vacated and the case was remanded to the referee for a decision on the request to backdate, and by a Referee Decision/Order mailed July 9, 2013, Claimant's benefits were allowed for the pertinent claim weeks (July 9, 2013 Referee Decision/Order, reproduced in Claimant's Brief at pages 47-48); and (iii) Appeal No. 583 - an appeal from the October 12, 2012 decision denying Claimant's request to backdate her application to an effective date of February 5, 2012 as untimely; ultimately, in a referee decision and order mailed July 9, 2013, Claimant's application for benefits effective February 5, 2012 was allowed. (July 9, 2013 Referee Decision/Order, reproduced in Claimant's Brief at pages 37-38.)
The documents provided as part of Claimant's brief demonstrate, inter alia, that Claimant appealed the October 9, 2012 Notice of Determination of financial eligibility, requesting that her benefit rate be recalculated based on the full time weekly wage. A referee affirmed the decision of the Center, finding that Claimant's total base year wages fell short of the qualifying amount and therefore found Claimant ineligible to calculate her weekly benefit rate based on a full time weekly wage; Claimant remained entitled to a weekly benefit rate of $317.00. (1/31/2013 Referee's Decision/Order, reproduced in Claimant's Brief at 49-50.) Claimant appealed to the Board, and, in a decision mailed June 7, 2013, the Board stated that "in light of additional documentation entered in to the record pertaining to [C]laimant's wages, the Board finds it appropriate to vacate the [r]eferee's [d]ecision and remand the case to the [Center] for a new computation of [C]laimant's base year wages and to issue a new determination under either Sections 404(e) or 404(a) of the [Act]..." (June 7, 2013 Board Order, reproduced in Claimant's Brief at 51-52.) Meanwhile, Claimant had requested the predating of her application for benefits to February 2012, and this request was granted by a referee in a decision dated July 9, 2013. (Referee's Decision/Order mailed 7/9/2013, reproduced in Claimant's Brief at 37.) Claimant thereupon submitted her application for benefits as of February 5, 2012 and was denied financial eligibility because she did not have sixteen (16) or more credit weeks during her base year, leading to the appeal presently before us. (R. Item 6, Financial Determination mailed 8/6/2013.)
The amounts set forth in the "Breakdown of Base-Year Wages by Quarter" section of the Notices of Determination for Claimant's applications as of August 12, 2012 and as of February 5, 2012, for the second and third quarters of 2011 ($7,865 and $409 respectively), are identical.
Claimant argues, in essence, that for the base years that extend from the fourth quarter of 2010 through third quarter of 2011 (used for purposes of her application for benefits as of February 5, 2012) and from the second quarter of 2011 through the first quarter of 2012 (used for purposes of the application for benefits as of August 12, 2012), there are two overlapping quarters (the second and third quarters of 2011), and if she was accorded credit weeks during those quarters for the application as of August 12, 2012, she is also entitled to be accorded credit for those quarters for the application as of February 5, 2012. We do not agree.
As this Court has previously stated, where the Law does not warrant a ruling in the claimant's favor, we have no equitable powers to ignore it. Chandler v. Unemployment Compensation Board of Review, 580 A.2d 457, 459 (Pa. Cmwlth. 1990). The disability payments that were made to Claimant in the second and third quarters of her base year do not constitute remuneration "with respect to" weeks within those quarters. The record supports the conclusion, as stated by the referee and adopted by the Board, that during the second and third quarters of her base year, Claimant received disability payments under Employer's plan, a benefit provided to all of Employer's full-time employees, not in consideration of services provided with respect to those weeks, but rather as a result of her disability. As such, she received no wages, as that term is defined in the Act.
Claimant relies on the definition of "wages" set forth in Section 4(x)(8) of the Act, 43 P.S. § 753(x)(8), and argues this Section effectively includes as wages those payments made for the first six months after an employee discontinues performing services for their employer due to illness. Section 4(x) states, in pertinent part, that:
"Wages" mean "all remuneration...paid by an employer to an individual with respect to his employment except that the term "wages" for the purposes of paying contributions shall not include:43 P.S. § 753(x)(2),(8). In Coates v. Unemployment Compensation Board of Review, 676 A.2d 742 (Pa. Cmwlth. 1996), we examined cases involving an analysis under Section 4(x) of the Act and specifically Section 4(x)(8) of the Act, and concluded that the courts continue to rely on the analysis set forth by this Court in Karamanian v. Unemployment Compensation Board of Review, 405 A.2d 1364 (Pa. Cmwlth. 1979). Karamanian involved facts similar to those set forth herein, where a claimant became disabled, stopped working, and received salary continuation payments, under his employer's policy of continuing to pay its salaried employees in the event of disability. Our Court affirmed the Board's interpretation of Section 4(x)(2) to exclude disability benefits from "wages." As we stated in Coates,
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(2) The amount of any payment...to or on behalf of an individual...under a plan or system established by an employer who makes provision generally for individuals performing service for it...on account of (i) retirement, or (ii) sickness or accident disability, or (iii) medical or hospitalization expenses in connection with sickness or accident disability, or (iv) death.
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(8) The amount of any payment on account of sickness or accident disability...by an employer to or on behalf of an individual performing services for it after the expiration of six calendar months following the last calendar month in which the individual performed services for such employer.
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The Board [in Karamanian] excluded the salary continuation payments from its determination of the claimant's base year wages, based on its findings that those payments were a disability benefit rather than remuneration paid by the employer with respect to the claimant's employment. In affirming the Board, the Karamanian court emphasized the significance of the factual determination that the salary continuation payments "were made on account of the disability and not...in consideration of any services which Claimant provided the employer.676 A.2d at 746.
In Coates, we determined that payment received by a claimant representing his accrued annual and sick leave constituted wages within the meaning of the Law, where the employer's customary practice was to deduct funds from the employees' accrued leave accounts as they were used and pay them biweekly. There, the claimant offered documentary evidence of the amount of annual and sick leave he had accrued. 676 A.2d at 743-44.
Here, the Board concluded that the monies received during the relevant quarters were disability benefits. Before the referee, Claimant testified that the payment she received were disability payments, and acknowledged that Employer provided its full-time employees with disability benefits. (R. Item 12, N.T. at 6.) The Certified Record contains copies of the check statements received by Claimant from Matrix Absence Management, Inc. following her last day of work in January, 2011; the first such statement indicates that the check represents the first payment, covering the period from January 18, 2011 to January 29, 2011, under policy number ASW515045, and that Claimant's "benefit for [the indicated period] is $635.02 based on your plan." (Id., Claimant's Exhibit.) Our legislature has established that unemployment compensation benefits are available only to those who are attached to the workforce and receiving wages. Karamanian, 405 A.2d at 1365. Based on the foregoing, the Board's order is affirmed.
We note that although not a subject of this appeal, and with regard to Claimant's application for benefits as of August 12, 2012, the Board issued an order dated February 18, 2014, determining that the Center was premature in issuing a determination on July 24, 2013, assessing a non-fault overpayment to Claimant for claim weeks ending September 22, 2012 through October 20, 2012, and remanded the matter of the existence of a non-fault overpayment to the Center for redetermination following the final resolution of the issues in this appeal. (February 18, 2014 Board Order, reproduced in Claimant's Brief at 56-58.) --------
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 30th day of March, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge