Opinion
No. 1102 C.D. 2013
01-03-2014
Sean Antonella, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Sean Antonella (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board reversed the order of an Unemployment Compensation Referee (Referee), which granted unemployment compensation benefits. Instead, the Board denied Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. For the reasons set forth below, we now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after Port Authority of Allegheny County (Employer) terminated his employment as a full-time operator. The Indiana UC Service Center (Service Center) issued a determination, finding Claimant eligible for benefits under Sections 402(b) and 401(d)(1) of the Law.
Employer filed a notice of intervention with this Court, and, as a result, the Board notified the Court that it would not be participating in this matter.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(b), 801(d)(1). Section 402(b) provides that a claimant shall be ineligible for benefits for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Section 401(d)(1) provides that compensation shall be payable to any employee who is unemployed and is able and available for suitable work.
Employer appealed the Service Center's determination, and a Referee conducted a hearing, at which both Claimant and Employer provided testimony. At the hearing, the parties agreed to have the Referee address the issue of willful misconduct under 402(e) of the Law. Following the hearing, the Referee concluded that the matter involved a question of willful misconduct (not voluntary resignation). The Referee then concluded that Employer failed to prove that it discharged Claimant for willful misconduct. As a result, the Referee issued a decision and order, affirming as modified the Service Center's determination.
Employer appealed the Referee's decision to the Board, which reversed. In so doing, the Board issued its own findings of fact and conclusions of law. The Board found:
1. The claimant was last employed as a full-time operator by The Port Authority of Allegheny County from July 2003 at a final rate of $26.24 per hour. His last day of work was March 31, 2012.
2. The employer's policy with the union provides for immediate termination from employment for fraudulent behavior with regard to payment and/or receipt of wages, salaries, benefits, or workers' compensation payments.
3. The claimant was aware of the employer's policy.
4. The claimant had medical issues with his shoulders, which affected his ability to perform all of his normal job duties.
5. The claimant filed an application for unemployment compensation (UC) benefits effective April 11, 2010.
6. On August 5, 2010, the employer's associate employment administrator sent the claimant a letter by certified and regular mail indicating that she had tried to contact the claimant by telephone to offer him a light-duty position, but that the claimant had not returned any of her calls. She informed the claimant that the employer considered him to have refused light-duty work and that he would be removed from the light-duty wait list. She invited the claimant to call her.
7. The associate employment administrator also left the claimant a voicemail message to this effect at his new cell phone number on August 6, 2010.
8. On August 9, 2010, the claimant called the associate employment administrator and left her a voicemail message that he had received her letter on August 6, 2010, and would like to speak to her. The associate employment administrator annotated the message in her notes.
9. On or about August 11, 2010, the employer sent to the claimant's doctor medical forms to be filled out regarding the claimant's ability to work.
10. The doctor's office failed to return the completed forms to the employer.
11. On November 4, 2010, the Department denied UC benefits to the claimant pursuant to Section 401(d)(1) of the Law as of week ending July 31, 2010, finding that due to his medical condition, the claimant was not able to work.
12. The claimant filed an appeal to the determination.
13. On February 10, 2011, the claimant spoke to a nurse in his doctor's office. He asked about the forms that had been sent by the employer for the doctor to fill out. The nurse pulled the claimant's chart and discovered that the forms had not been filled out. She informed the claimant that they had not been completed by the doctor.
14. At the doctor's direction, the nurse filled the forms out and gave them to the claimant. She did not date the forms. The first page indicated that the claimant had surgery on both shoulders and that restrictions would be the same for both shoulders post-op.
15. A second page indicated the claimant's restrictions. It is dated August 11, 2010. The nurse did not write the date; the employer had.
16. On February 11, 2011, a hearing was held before a UC Referee.
17. At the hearing, the claimant submitted the medical forms from his doctor into the record and testified that his doctor's office faxed the forms to the employer on August 11, 2010. The claimant testified that on August 9, 2010, [sic] he confirmed with a woman named Patty from the medical department that she had received the copy of the limitations.
18. At the hearing, the employer denied receiving the documentation in August 2010.
19. At the hearing, the claimant denied receiving the certified letter from the associate employment administrator stating that he had refused suitable work. The claimant testified that he believed that he was on the employer's light-duty waiting list after August 9, 2010.
20. On February 14, 2011, the Referee issued a decision denying benefits to the claimant pursuant to Section 401(d)(1) of the Law, finding the claimant not credible that his doctor had faxed the forms to the employer in August 2010 since they referred to a second surgery the claimant had in October 2010.
21. By letter dated March 15, 2011, the doctor explained to the employer that due to an error on its [sic] part, and unbeknownst to the claimant, the forms received by it
from the employer in August 2010 were placed in the claimant's chart without being completed.(C.R., Item No. 19 (emphasis added).)
22. After March 31, 2012, the claimant was off from work on a leave of absence due to medical issues.
23. Beginning February 22, 2011, the employer attempted several times to schedule hearings with the claimant regarding false allegations he made at the Referee hearing, but was hampered by the claimant's leave of absence and work locations. Several scheduled hearings in February, April, May, and June 2012 were postponed. A hearing was finally held, in the claimant's absence, on July 24, 2012.
24. On July 24, 2012, the employer terminated the claimant's employment for knowingly falsely testifying at the UC hearing in an attempt to be eligible for UC benefits, in violation of the employer's policy.
25. The claimant is able and available for light-duty work.
Based on the foregoing facts, the Board concluded that Claimant was ineligible for unemployment benefits under Section 402(e) of the Law, because he had engaged in willful misconduct by violating employer's policy relating to fraudulent behavior. Specifically, the Board reasoned:
[T]he employer has established that it has a policy providing for immediate termination from employment for fraudulent behavior with regard to payment and/or receipt of wages, salaries, benefits, or workers' compensation payments. The claimant was aware of that policy. The employer terminated the claimant's employment for violation of the policy in light of testimony offered by the claimant under oath at a hearing for the receipt of UC benefits on February 11, 2011.
Specifically, the claimant testified that his doctor's office faxed his medical limitations to the employer on August 11, 2010, and that an employee in the medical department confirmed its receipt of the limitations. However, the nurse from the doctor's office testified that
on February 10, 2011, the day prior to the [UC Referee] hearing, she specifically informed the claimant that the doctor's office had neglected to fill out the forms. A note from the doctor confirmed that the forms were not completed until February 2011. The forms refer to surgery that was not performed until October 2010. The claimant asserted at the current hearing that he never spoke to the nurse at the doctor's office on February 10, 2011, and was unaware that the forms were filled out for the first time on that date. The Board resolves the conflict in testimony in favor of the employer. Although the claimant was aware that the doctor's office never completed nor could have faxed the employer the forms in August 2010, he testified to that at the hearing and to the fact that the employer acknowledged receipt of the forms.(Id. (emphasis added).)
In addition, the claimant testified at the February 11, 2011, hearing that he did not receive the employer's August 5, 2010, letter telling him that he had refused light-duty work and had been taken off the light-duty list. The claimant testified that he believed that he remained on the light-duty list after August 9, 2010. The employer's associate employment administrator testified that at the current hearing that she mailed the claimant the August 5, 2010, letter both certified and regular mail and that the claimant later left her a voicemail message acknowledging receipt of the letter. The Board resolves the conflict in testimony in favor of the employer. The claimant received the letter and was aware that he had been removed from the light-duty list, yet denied this fact at the prior unemployment compensation hearing.
On appeal, Claimant essentially argues that the Board erred in crediting Employer's testimony. In particular, he argues that, contrary to the testimony of Employer's witnesses, he never received any phone calls or letters from Employer regarding light-duty work and that he did not know at the February 11, 2011 hearing that the doctor had failed to fill out and submit to Employer the medical forms in August 2010. In support of his argument that he never received phone calls or letters relating to light-duty work, Claimant refers to his phone records to demonstrate that there were no incoming calls from Employer on the days in question. Moreover, he argues that had Employer sent him a certified letter, it would have offered into evidence a delivery receipt to show that Claimant received said letter. In support of his argument that he was unaware at the February 11, 2011 hearing that the doctor had not completed the medical forms prior to his February 10, 2011 visit to the doctor's office, Claimant cites to the March 15, 2011 letter issued by the doctor. As the Board found, in the letter, the doctor stated that the medical forms were completed in February 2011 unbeknownst to Claimant. (Id. at Finding of Fact (F.F.) No. 21.) As a result, Claimant argues that the Board should have credited his testimony and not denied him benefits under Section 402(e) of the Law.
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
In an unemployment compensation case, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). In making the credibility determinations, the Board "may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982). The appellate court's duty is to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). Claimant's argument essentially asks the Court to overturn the fact finder's credibility determination and reweigh the evidence. Here, the Board chose to accept the testimony of Employer as credible when it specifically resolved any conflict in testimony in Employer's favor. We must decline, therefore, Claimant's invitation to revisit the Board's credibility determinations and reweigh the evidence on appeal.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 3rd day of January, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge