Summary
holding claimant eligible for benefits because there was substantial evidence to show claimant was ill on her last absences
Summary of this case from Abdellah v. Unemployment Comp. Bd. of ReviewOpinion
March 2, 1987.
Unemployment compensation — Scope of appellate review — Willful misconduct — Absenteeism — Good cause — Burden of proof.
1. In an unemployment compensation case, the scope of review of the Commonwealth Court of Pennsylvania is to determine whether there is substantial evidence on the record to support the findings of fact made by the referee or whether there is an error of law; the question of whether the behavior for which a claimant is discharged constitutes willful misconduct is a question of law subject to review by the Court. [276]
2. Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment compensation benefits; an additional element, such as lack of good cause, is necessary, and an absence caused by illness is not without good cause and does not constitute willful misconduct. [278]
3. The burden of proving willful misconduct so as to render a claimant ineligible for unemployment compensation is on the employer. [278]
Judge PALLADINO dissented.
Submitted on briefs November 17, 1986, to Judges BARRY and PALLADINO, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 2500 C.D. 1985, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Elizabeth Runkle, No. B-242812.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Leo E. Gribbin, Stetler Gribbin, for petitioner.
Samuel H. Lewis, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Petitioner appeals the decision and order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of the referee denying benefits to petitioner for willful misconduct, pursuant to section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (e). We reverse.
Petitioner was a nursing assistant for over twenty-three years. Her discharge was based on willful misconduct due to a lack of good cause for absenteeism.
The question of whether the behavior for which a petitioner is discharged constitutes willful misconduct is a question of law subject to review by this court. Northeastern Hospital v. Unemployment Compensation Board of Review, 64 Pa. Commw. 332, 439 A.2d 1337 (1982). Our scope of review is to determine whether there is substantial evidence on the record to support the findings of fact made by the referee or whether there is an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
The referee found that petitioner had previously been warned, and suspended for five days, for absenteeism. In April, 1984, the employer asked petitioner to be examined by the employer's health department. The employer found that there were no health problems that would cause petitioner to be unemployable. Despite this examination, the record does show absences which were explained by doctors' notes. On at least one occasion, petitioner had undergone surgery. Other absences were explained by problems with transportation due to poor weather conditions.
The referee based his conclusion of willful misconduct primarily on petitioner's last period of absenteeism. While he found that on February 5, 7, 8, 9 and 10, 1985, petitioner called to report that she was out sick with the flu, he could find no good reasons for petitioner to be absent from work for almost a week. The record shows that petitioner's medical evidence indicates that on February 8, she saw a physician, Dr. Frost, who indicated that petitioner had an ear problem for the past two weeks and a viral condition, that in the last three days she had been coughing uncontrollably, and that she probably had the flu with some muscle strain in her chest.
Petitioner testified that she was advised by her physician to "stay off" because she had influenza. The referee found that "[i]f the claimant were so ill that she needed to miss work, especially under the circumstances of this case when she knew that her job was in jeopardy, common sense and prudence would have dictated that she visit a doctor on the first day of such illness."
Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary. An absence due to illness constitutes good cause and does not constitute willful misconduct. Vargas v. Unemployment Compensation Board of Review, 87 Pa. Commw. 158, 486 A.2d 1050 (1985).
The burden of proving willful misconduct, so as to render a petitioner ineligible for unemployment compensation benefits, is on the employer. Northeastern Hospital. Unlike a voluntary quit case, where acting with prudence and common sense is relevant in determining a necessitous and compelling reason to voluntarily quit a job, in a case such as the instant one, it is the lack of illness which denies benefits. We do not find that there is substantial evidence to support a finding that petitioner was not ill. Furthermore, it is not relevant whether it was prudent or lacking in common sense to visit a doctor on a particular day. It is unreasonable to infer that there was no illness under the circumstances of this case. The employer did not meet its burden of proof.
Accordingly, we reverse the Board.
ORDER
NOW, March 2, 1987, the order of the Unemployment Compensation Board of Review, No. B-242812, dated August 20, 1985, is reversed.
Judge PALLADINO dissents.