Opinion
No. 1310 C.D. 2013
05-23-2014
Viola Evans, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Viola Evans (Claimant) petitions for review from the Order of the Unemployment Compensation (UC) Board of Review (Board) that affirmed the Decision of the UC Referee (Referee) finding Claimant ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) for making false statements to Temple University (Employer). Claimant argues that the Board's finding that she made false statements to Employer is not supported by substantial evidence, that she informed Employer that her condition was improving, and that the Board failed to consider whether she had good cause for her actions. Discerning no error, 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 UC benefits for any week in which her unemployment is due to willful misconduct. Id. Although not defined by the Law, the courts have defined willful misconduct as: "a) wanton or willful disregard for an employer's interests; b) deliberate violation of an employer's rules; c) disregard for standards of behavior which an employer can rightfully expect of an employee; or d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997).
Claimant worked for Employer in a cleaning position from August 6, 1990 until Employer discharged her on January 11, 2013. After her discharge, Claimant applied for UC benefits and the Service Center approved her application. Employer appealed and a hearing was held before the Referee. Claimant appeared and was represented by counsel at the hearing. Employer presented the testimony of its director of workers' compensation and absence management (Director) and its operations manager of facilities management (Manager). After the hearing, the Referee made the following findings of fact:
2. The employer's Rules of Conduct state that fraudulent statements or misrepresentation is cause for immediate termination from employment.
3. The claimant was aware, or should have been aware, of the employer's rules regarding fraudulent statements.
4. The claimant sustained a work related injury.
5. The claimant filed a Workers' Compensation claim based on her injury on October 22, 2012; the claimant then proceeded on leave from October 22, 2012 onwards.
6. On November 15, 2012, the claimant reported to the Director of Worker[s'] Compensation regarding her injury.(Referee Decision, Findings of Fact (FOF) ¶¶ 2-17.) The Referee credited the testimony of Employer's witnesses and found that Claimant was able to move, bend, lift, and carry when she was questioned by the Director on January 11, 2013, and that she lied when she stated otherwise. The Referee held that, by lying to Employer, Claimant's conduct fell below the standards of behavior that an employer may expect from an employee. Therefore, the Referee reversed the determination of the Service Center and held that Claimant was ineligible for UC benefits due to her willful misconduct. (Referee Decision at 2-3.) Claimant appealed to the Board, which adopted and affirmed the Referee's Decision. Claimant now petitions this Court for review.
7. The claimant's narration of the injury and the mechanism of the injury raised a red flag and the Director got suspicious about the injury and the limitations it caused the claimant.
8. The Director of Workers' Compensation requested an independent Private Investigator to find out about the claimant's activities.
9. The claimant had indicated that she could not move and lift due to her injuries.
10. The claimant's Workers' Compensation doctors had provided medical certificates regarding the claimant's health condition.
11. The Private Investigator took videos that showed that on December 12, 2012, December 13, 2012, December 20, 2012, December 28, 2012 and January 2, 2013 the claimant was able to bend, move, lift ladders, and put up Christmas lights.
12. The videos also indicated that the claimant had visited a casino in Atlantic City once and was seen carrying a bag with her which she could lift easily.
13. The claimant had also visited another casino in Philadelphia.
14. The claimant did not inform the employer that she was able to move and that her health condition had improved.
15. On January 11, 2013, when the Director questioned her about her health conditions the claimant indicated that she was still unable to move, bend and lift.
16. The claimant was shown the video which showed her performing all these activities.
17. On January 11, 2013, the employer discharged the claimant for her fraudulent statements.
The record does not reveal the current state of Claimant's Workers' Compensation claim.
This Court's review of an order of the Board "is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal to this Court, Claimant, argues that: (1) there is not substantial evidence in the record to support a finding that Claimant made false statements to Employer; (2) the Board erroneously determined that Claimant failed to inform Employer of her improving condition and could have engaged in light-duty work; and (3) the Board failed to consider important issues such as whether Claimant's conduct was deliberate, whether Claimant had good cause for her conduct, and the circumstances surrounding Claimant's actions.
Employer, for its part, argues that Claimant's Petition for Review should be quashed because she failed to file a reproduced record. However, claimants petitioning for review from a decision of the Board are not required to file reproduced records. Rule 556 of the Pennsylvania Rules of Appellate Procedure provides that "[a] claimant-appellant in an unemployment compensation matter may proceed in forma pauperis without applying for leave to do so." Pa. R.A.P. 556. Rule 2151(b) of the Pennsylvania Rules of Appellate Procedure provides that a party proceeding in forma pauperis need not provide a reproduced record. Pa. R.A.P. 2151(b).
We first address Claimant's argument that there is not substantial evidence in the record to support the Board's finding that Claimant made false statements to Employer. This Court may not overturn the Board's findings of fact if they are supported by substantial evidence. University City Housing Co. v. Unemployment Compensation Board of Review, 539 A.2d 489, 490 (Pa. Cmwlth. 1988). "Substantial evidence is correctly defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1387 (Pa. 1985) (quoting Murphy v. Department of Public Welfare, 480 A.2d 382, 386 (Pa. Cmwlth. 1984)). Questions of credibility and the resolution of conflicts in the evidence are solely within the Board's discretion. Id. at 1388. The Board is free to "accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Compensation Board of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982).
Claimant argues that there is not substantial evidence in the record to support the Board's finding that Claimant told Director she could not "move, bend and lift." (FOF ¶ 15.) Claimant relies on Director's testimony that he opened the meeting by stating that Claimant had told Employer's panel physician that she could not stand, walk, bend, or perform various physical activities. (Hr'g Tr. at 18.) Claimant argues that this testimony means that it was only Director, not Claimant, who made such a statement. However, that Director made such a statement does not contradict Manager's definitive testimony that Claimant herself stated to both Manager and Director that she was unable to move, bend, or lift:
R Well, first answer my question, sir. What did [Claimant] say that was considered fraudulent?
EW2 [Manager] Specifically, she said . . .
R Yes.
EW2 . . . that she wasn't able to bend, to lift, to move. We had asked her directly if she had been to a casino. Upon our investigation, we had uncovered . . .
R So, she said that she was not able to bend, move, lift?(Hr'g Tr. at 6-7, S.R.R. at 44b-45b (ellipses in original).) Thus, there is substantial evidence in the record to support the Board's finding that Claimant told Director that she was unable to move, lift, or bend.
EW2 Correct.
It is unclear why this finding of fact refers only to Director.
Next, we consider Claimant's argument that she informed Employer's panel physician and, thus, Employer of her improving condition. Claimant also argues that the Board erred in finding that she engaged in willful misconduct for not reporting for light-duty work when there is no evidence that light-duty work was available. Claimant asserts that the Board's determination that she engaged in willful misconduct was based "in significant part" on findings that Claimant did not inform Employer when her condition improved and that she did not return to light-duty work when her condition improved. (Claimant's Br. at 10.) However, the Board's determination that Claimant engaged in willful misconduct appears to be based primarily on Claimant's false statement to Employer at the January 11, 2013 meeting:
Based on the competent and credible testimony and documentary evidence presented by the employer's witness, the Referee finds that the claimant was able to not only perform the daily activities of living but could have worked if the employer had been notified that she was able to do some work within any limitations that she may have had. However the claimant stated that she was still unable to bend, push, pull, or carry when asked by the Director, which was a false statement. Therefore, the Referee finds that the claimant's conduct was in disregard of the standards of behavior that an employer has the right to expect of an employee.(Referee's Decision at 2-3 (emphasis added).) That Claimant was able to work appears to have been raised as a contrast to Claimant's false statement that she could not "bend, push, pull, or carry," rather than as an independent basis for finding that Claimant engaged in willful misconduct. The Board's rationale is based on this affirmative statement rather than Claimant's failure to inform Employer that her condition had improved. Moreover, the panel physician's notes do not support Claimant's argument that she informed the physician that her condition was significantly improving. Therefore, we reject Claimant's arguments on these points.
At her final appointment with the panel physician, on January 10, 2013, the physician's notes state Claimant reported her level of pain as 6 out of 10, occasionally up to 10 out of 10, and that she was at home, not doing much, or lifting anything heavy. (Claimant's Ex. 8 at 2, S.R.R. at 34b.) --------
Finally, we consider Claimant's argument that the Board failed to consider whether Claimant deliberately made a false statement to Employer, whether Claimant had good cause for her false statement, or whether there were mitigating circumstances surrounding her false statement. The Board acknowledged that:
the claimant defended her actions by stating that she had used a very light ladder when she was putting up the Christmas lights and that the bag that she carried, was also very light and her work duties required her to do more work than what she was seen doing on the videos.(Referee Decision at 2.) Thus, the Board did consider Claimant's explanations, but evidently did not find them convincing. On appeal, Claimant makes no explanation of how her false statement might not have been deliberate, other than positing it may have been "delayed recall." (Claimant's Br. at 11-12.) Claimant does not cite any evidence or testimony that would support such a finding. Likewise, Claimant does not explain what might have constituted good cause for making a false statement to Employer.
For these reasons, we are constrained to affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 23, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge