Opinion
No. 467 C.D. 2012
10-09-2012
Pattie Kobeski, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Pattie Kobeski (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed a Referee's determination that Claimant was ineligible for benefits under Section 401(d)(1) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Section 401(d)(1) of the Law provides that a claimant must be "able to work and available for suitable work" in order to receive benefits.
Claimant was employed by Moses Taylor Hospital (Employer) as a full-time food server beginning December 3, 2007. Following an unpaid leave from employment, Claimant filed a claim for unemployment compensation benefits on or about October 16, 2011. On November 10, 2011, the Scranton UC Service Center (Service Center) issued a Notice of Determination, finding Claimant to be not ineligible for benefits under Section 402(b) of the Law, but ineligible for benefits under Section 401(d)(1), beginning with the week ending on October 22, 2011. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination.
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 that an employee is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.
On December 21, 2011, the Referee conducted a hearing in which Employer did not participate. The issues before the Referee were whether Claimant's unemployment was due to voluntarily leaving work without cause of a necessitous and compelling nature and whether Claimant was able and available for suitable work. (C.R., Item No. 10.)
At the hearing, Claimant testified to the circumstances surrounding her separation from employment. Claimant explained that she was involved in a car accident on August 12, 2011, and that she experienced severe pain when she went into work on August 15, 2011. (C.R., Item No. 9 at 5.) Employer sent her home that day and eventually placed her on medical leave pursuant to the Family Medical Leave Act, which leave was set to expire on November 7, 2011. (Id. at 5-6.) Claimant stated that she returned to Employer on November 3, 2011, in an attempt to get her medical leave extended, but she left without knowing whether the paperwork would be completed. (Id. at 6.) Claimant testified that she heard nothing regarding her employment or benefits status until she received her determination from the Service Center. (Id.) Claimant also stated that she received a letter from Employer on November 22, 2011, indicating that her leave of absence had ended. (Id. at 8.)
Claimant further testified that she had a prior medical issue in February or March of 2011, and Employer told her at that time that there was no light duty work available for her. (Id. at 7.) Claimant stated that, as a result of this communication, she did not ask Employer about the availability of light duty work after her involvement in the car accident, because she believed that such work still would be unavailable. (Id.) She testified that she would have been able to perform light duty work, but she never obtained a note from her doctor proving this to Employer. (Id. at 6-8.) Claimant also stated that she had not worked at all since working for Employer. (Id. at 8.)
Following the hearing, the Referee issued a decision in which he affirmed the determination of the Service Center. (C.R., Item No. 10.) In so doing, the Referee issued the following findings of fact:
1. The claimant worked as a full-time food server at Moses Taylor Hospital from December 3, 2007 until August 15, 2011 at a rate of pay of $9.03 per hour.
2. On August 12, 2011, the claimant was in a car accident and sustained injuries.
3. On [August] 15, 2011, the claimant went to work bu[t] was in pain and the employer sent her to [its] emergency room.
4. The claimant was sent home from the employer on August 15, 2011 due to her injuries she sustained in an automobile accident.(Id.)
5. The claimant requested Family Medical Leave effective August 15, 2011 and the employer granted the claimant's request.
6. The claimant's Family Medical Leave was scheduled to end on November 7,[]2011[.]
7. On November 3, 2011, the claimant submitted a request to the employer to extend her medical leave because she was unable to return to work in a full duty capacity.
8. The claimant did not provide documentation to her employer that she was able and available for light duty work.
9. The claimant received notification on November 22, 2011 that the employer terminated the claimant's employment.
The Referee's finding of fact number 3 initially referenced "October 15, 2011," but the Board subsequently amended the finding to refer to "August 15, 2011," as the date that Claimant went to work and was subsequently sent to Employer's emergency room due to the pain she was experiencing.
Based upon the above findings, the Referee reasoned that Claimant went on family medical leave due to injuries she sustained in a car accident. (Id.) Although Claimant alleged that she would have been able to perform light duty work after the car accident occurred, she did not provide proof of this to Employer. (Id.) Instead, Claimant believed no light duty work was available by referring to a prior incident in which Employer would not offer her light duty work. (Id.) Thus, the Referee concluded that Claimant established a necessitous and compelling reason to go on a leave of absence, but that there was nothing in the record to substantiate that Claimant was able and available for suitable work as of the week ending October 22, 2011. (Id.) At the end of his decision, the Referee noted that the Service Center may wish to further investigate the period of time after November 22, 2011, and make a separate determination for that time, because Claimant testified that she received notification from Employer that she had been terminated as of November 22, 2011.
We note that Claimant only testified that she received a letter on November 22, 2011, stating that her leave of absence had ended. (C.R., Item No. 3 at 4, 8.) The letter was not admitted into evidence. (See id.) Claimant, nevertheless, attached the letter to her brief. Because the letter is not part of the certified record of this case, we are unable to consider it for purposes of this appeal. Tener v. Unemployment Comp. Bd. of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990) ("[T]his Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal.").
Claimant appealed to the Board, which issued an order affirming the Referee's determination. (C.R., Item No. 12.) In its order, the Board adopted and incorporated the Referee's findings of fact and conclusions of law, with the amendment noted above. (Id.) The Board also noted that Claimant indicated on an unemployment compensation questionnaire, dated October 18, 2011, that she was not yet released by her doctor to go back to work and she was not allowed to work per her doctor's orders. (Id.) The Board concluded that such evidence rebutted the presumption that Claimant was able and available for work during the week ending October 22, 2011. (Id.) The Board did not credit Claimant's testimony that she was able and available for light duty work. (Id.) Claimant petitioned this Court for review.
After filing her petition for review with this Court, Claimant filed a request for reconsideration with the Board. (C.R., Item No. 13.) The request was ultimately denied by operation of law when the Board failed to make a timely ruling. (C.R., Item No. 14.)
On appeal, Claimant essentially argues that the Board erred in concluding that she voluntarily quit her employment. Claimant also argues that the Board erred in concluding that she was not able and available for work.
This Court's 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. 2 Pa. C.S. § 704.
Claimant appears to also argue that the Board improperly denied her request for reconsideration. We note that the Board issued its order denying Claimant's request for reconsideration on May 17, 2012, but the order appealed to this Court is dated March 14, 2012. Because the appeal of the March 14, 2012 order is the only matter properly before us at this time, we will not consider Claimant's arguments regarding the Board's denial of her request for reconsideration.
First, we will address Claimant's argument that the Board erred in determining that Claimant voluntarily quit her employment, because, according to Claimant, Employer fired her. She contends that her attempt to extend her medical leave on November 3, 2011, shows that she did not quit her job. She also argues that she received a letter from Employer referencing her termination, thereby establishing that she was fired.
Claimant's challenge to the determination regarding her voluntary quit is misplaced. Claimant's error is understandable, given some of the Board's findings. Specifically, the Board (through incorporation of the Referee's decision) made a finding of fact that Claimant received notification via letter on November 22, 2011, that Employer terminated Claimant's employment. It appears that the Board made such a finding in relation to its observation that the Service Center may want to further investigate the circumstances surrounding the letter sent to Claimant on November 22, 2011. Importantly, these findings do not relate to the week ending October 22, 2011. It may well be that Employer terminated Claimant's employment at a subsequent date, but there is nothing in the record to establish a termination as of the week at issue here.
Moreover, although Claimant appears to contend that the Board should have found or concluded that Employer terminated her employment in November 2011, she does not challenge any of the Board's factual findings supporting the Board's conclusion that she voluntarily resigned her employment with regard to the week ending October 22, 2011. In cases like this one, where a claimant has failed to challenge any specific findings of fact, this Court has held that the Board's findings are conclusive on appeal. Salamak v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985). Moreover, these findings of fact support a conclusion that Claimant voluntarily quit with cause of a necessitous and compelling nature. See Pennsylvania Elec. Co. v. Unemployment Comp. Bd. of Review, 450 A.2d 779, 780-81 (Pa. Cmwlth. 1982) (holding that claimant placed on unpaid sick leave had voluntarily resigned from employment with cause of necessitous and compelling nature for purposes of unemployment compensation benefits and awarding benefits because she was not performing any services for or receiving any remuneration from employer during that time despite fact claimant had not actually quit her employment).
Finally, we note that Claimant cannot properly appeal the determination made by the Board under Section 402(b) of the Law, because the Board did not determine that she was ineligible for benefits based on that section. Under Rule 501 of the Pennsylvania Rules of Appellate Procedure, "any party who is aggrieved by an appealable order[] . . . may appeal therefrom." Pa. R.A.P. 501. "If a party is not adversely affected in any way by the determination being challenged, the party is not aggrieved and, thereby, has no standing to obtain a judicial resolution of the challenge." Energy Conservation Council of Pennsylvania v. Pub. Util. Comm'n, 995 A.2d 465, 475 (Pa. Cmwlth. 2010) (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975)). As stated above, the Board determined that Claimant was eligible for benefits, because she voluntarily quit her employment beginning with the week ending October 22, 2011, and had cause of a necessitous and compelling nature to do so. Nevertheless, the Board found Claimant to be ineligible for benefits under Section 401(d)(1) of the Law, because it determined that she was not able and available for light duty work at that time. As a result, Claimant was not adversely affected and, thus, not aggrieved by the Board's determination made under Section 402(b).
Next, we will address Claimant's argument that the Board erred in determining that Claimant was ineligible for benefits under Section 401(d)(1) of the Law, because she was not able and available for work. Claimant seems to argue that the findings of fact fail to support the conclusion that she was not able and available for work. Claimant argues that she was able and available for light duty work, but that Employer had previously told her that no light duty work was available. Claimant also contends that, as a result of Employer's previous representation that no light duty work was available, she did not know that she was supposed to demonstrate that she was able and available for light duty work after her involvement in the car accident.
Section 401(d)(1) of the Law provides, in part, that "[c]ompensation shall be payable to any employee who is or becomes unemployed, and who . . . . [i]s able to work and available for suitable work." The burden of proving availability for suitable work is on the claimant. Koba v. Unemployment Comp. Bd. of Review, 370 A.2d 815, 816 (Pa. Cmwlth. 1977). "Generally, the determination of whether or not a claimant is available for work as required by Section 401(d) of the [Law] is a question of fact for the Board, which this Court is bound to affirm if the Board's resolution of that factual issue is supported by substantial evidence." Pennsylvania Elec. Co., 450 A.2d at 781. An unemployed worker who registers for unemployment is presumed to be able and available for work. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 625, 437 A.2d 1213, 1216 (1982). This presumption is rebuttable by evidence that a claimant's physical condition limits the type of work he is available to accept or that he has voluntarily placed other restrictions on the type of job he is willing to accept. Molnar v. Unemployment Comp. Bd. of Review, 397 A.2d 869, 870 (Pa. Cmwlth. 1979). If the presumption of availability is rebutted, the burden shifts to the claimant to produce evidence that he is able to do some type of work and that there is a reasonable opportunity for securing such work. Id. "The real question is whether Claimant has imposed conditions on his employment which so limit his availability as to effectively remove him from the labor market." Harwood v. Unemployment Comp. Bd. of Review, 531 A.2d 823, 826 (Pa. Cmwlth. 1987).
Here, Claimant established a presumption of availability for employment by registering for unemployment compensation benefits. This presumption, however, is rebuttable, and, therefore, we must next consider whether Claimant's physical condition limited the type of work she was available to accept or if she voluntarily placed other restrictions on the type of job she was willing to accept.
In this case, Claimant filled out an unemployment compensation questionnaire on October 18, 2011. (C.R., Item No. 2.) In response to a question regarding her work limitations, Claimant stated that she could not lift anything over ten pounds and that she had not been released by her doctor to go back to work. (Id.) She also stated that she could return to work when she had a doctor's note stating that she was able to work without restrictions. (Id.) Although she indicated that Employer would not provide light duty work, Claimant also stated that she was not capable of doing other work because her neck hurt no matter what she did and that she was not able to work per her doctor's orders. (Id.) Finally, Claimant stated that she was not available for work because she did not have transportation, as her car was still not repaired from the accident. (Id.) Given the information Claimant provided on the questionnaire, we agree with the Board that Claimant's presumption of availability was rebutted.
The burden then shifted to Claimant to produce evidence that she was able to do some type of work and that there was a reasonable opportunity for securing such work. The law does not require that the employee be available for full-time work, for permanent work, for his most recent work, or for his customary job, so long as the claimant is ready, willing, and able to accept some suitable work. Sturdevant Unemployment Comp. Case, 45 A.2d 898, 905 (Pa. Super. 1946); Myers v. Unemployment Comp. Bd. of Review, 330 A.2d 886, 888 (Pa. Cmwlth. 1975). Importantly, "a claimant who imposes conditions as to his employment may still be available within the meaning of Section 401(d)." Harwood, 531 A.2d at 825.
This case is sometimes cited as Bliley Electric Co. v. Unemployment Compensation Board of Review.
In this situation, Claimant testified that she was or probably could have been able and available for light duty work. (C.R., Item No. 9 at 6-7.) The Board, in adopting the Referee's findings of fact, did not credit Claimant's testimony. In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). Questions of credibility are not subject to re-evaluation on judicial review. Id. at 276-77, 501 A.2d at 1388. Furthermore, Claimant's testimony shows that she did not indicate to Employer after her accident in August that she was able to perform light duty work; she instead assumed no light duty work was available based on a previous incident in which Employer stated that to be the case. (C.R., Item. No. 9 at 7-8.) Thus, the Board did not err in determining that Claimant was not able and available for work.
Claimant attached a doctor's note dated January 4, 2012, to the petition for appeal that she submitted to the Board. (C.R., Item No. 11.) This note stated that Claimant was "able to perform work duties without restriction." (Id.) Despite our conclusion above, we feel compelled to provide further explanation of the determinations below regarding Claimant's ineligibility under Section 401(d)(1) of the Law and to address Claimant's argument as it pertains to this note. The Referee found Claimant to be ineligible for benefits under Section 401(d)(1) for the week ending October 22, 2011. (C.R., Item No. 10.) No other claim weeks were at issue in the matter before the Referee. As noted above, the Board affirmed the Referee's decision. (C.R., Item No. 12.) We note here that the issue of whether a claimant is able and available for work must be decided for each claim week, and if a claimant is found to be unable to work or unavailable for work for one week, it does not preclude her from being found eligible for any other week. See Cicco v. Unemployment Comp. Bd. of Review, 432 A.2d 1162, 1166 (Pa. Cmwlth. 1981).
Claimant contends that she did not produce a doctor's note prior to the Referee's determination, because (1) she was unaware of a requirement to do so, and (2) Employer previously told her that no light duty work was available. Claimant essentially argues that this evidence proves that she was able and available for work. First, Section 101.106 of the regulations states that "[i]n connection with the consideration of an appeal to the Board from the decision of a referee, the Board may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted, or direct the taking of additional testimony." 34 Pa. Code § 101.106. As we have stated before, "[i]t is well settled that the Board is restricted to reviewing the evidence submitted by the referee unless it takes additional evidence under [S]ection 101.106 of the regulations." Han v. Unemployment Comp. Bd. of Review, 42 A.3d 1155, 1157 (Pa. Cmwlth. 2012). Thus, the Board could not consider this note in addressing Claimant's appeal. Second, because Claimant's note is dated January 4, 2012, and does not contain any information regarding her ability or availability to work prior to that date, Claimant's note, even if accepted, is irrelevant for purposes of the week at issue. Nevertheless, because a new determination of eligibility can be made every claim week, we emphasize that Claimant is not precluded from establishing that she is able and available for suitable work for a period not at issue in this case, through the use of the doctor's note or any other competent evidence.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 9th day of October, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge