Opinion
No. 444 C.D. 2012
02-07-2013
Polly A. Kunselman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Polly A. Kunselman (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's decision denying her unemployment benefits under Section 401(d)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1), and Section 402(b) of the Law, 43 P.S. § 802(b). We affirm.
Section 401(d) of the Law provides that compensation shall be payable to any unemployed employee who "[i]s able to work and available for suitable work." Under Section 402(b) of the Law, an employee is ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature
The referee's findings adopted by the Board and the undisputed evidence in the record reveal the following relevant events leading to Claimant's separation from employment. Claimant began working for Hempt Brothers (Employer) in 2005 as a full-time truck driver. In November 2010, she was laid off due to the seasonal nature of Employer's business. Claimant thereafter filed a sex discrimination complaint against Employer with the Equal Employment Opportunity Commission. On March 11, 2011, Employer asked her to report to work on March 15 and attend a safety breakfast meeting. She responded that she was unable to attend the meeting due to medical appointments. On April 21, Employer sent her a letter, stating that she had been on an unpaid leave of absence since March 11. Employer asked her to have her treating physician complete a medical questionnaire included in the letter and return it to Employer by May 6.
On May 6, 2011, Claimant's counsel sent Employer a letter, disputing that Claimant had been recalled or on an unpaid leave of absence. Counsel stated that Claimant never informed Employer that she was medically unable to return to work. Counsel asked Employer to direct all future correspondence to her. Employer and Claimant thereafter communicated through their counsel. In an e-mail sent to Claimant's counsel on May 9, Employer's counsel asked Claimant to report to work on May 10. Claimant's counsel responded that Claimant was not given sufficient advance notice to enable her to arrange child care for her daughter. Stating that Claimant had some medical issues, counsel requested a short-term disability claim form. Employer's counsel responded that Claimant should return to work on May 16 or have her treating physician complete a medical questionnaire and return it by May 20, which was later extended to June 20.
On May 21, Claimant's physician, Dr. Stuart Hartman, completed a disability claim form and returned it to Employer's insurance carrier, Dearborn National, as instructed in the form. Dr. Hartman stated that Claimant was disabled due to right arm ridiculitus and hip and shoulder bursitis but could return to part-time work on July 1 with restrictions on lifting and repetitive activities. On June 16, Dr. Hartman also completed a medical questionnaire and faxed it to Employer. He stated that Claimant suffered from chronic neck and shoulder pain and had been unable to perform duties of her truck driver job since May 16. He restricted her to limited driving and no pushing, pulling or overhead activity and listed sedentary duties involving no lifting as his suggested accommodation. He stated, however, that it was not possible to predict when she would be able to return to work "with or without accommodation." Certified Record (C.R.), Item No. 16; Exhibit C-4.
The Lancaster UC Service Center denied Claimant's application for benefits for the compensation week ending May 14, 2011, determining that she was eligible for benefits under Section 402(b) of the Law but was ineligible for benefits under Section 401(d)(1) of the Law. Claimant appealed, and the referee held a hearing at which Claimant, her counsel and Employer's counsel testified. Claimant testified that although she was unable and unavailable to work before Dr. Hartman completed the medical questionnaire on June 16, 2011, she was able and available to perform sedentary duties with restrictions as of June 16, and that Employer had not offered her suitable work.
The referee affirmed, as modified, the Service Center's determination. The referee rejected Claimant's testimony that she was able and available to perform sedentary duties as of June 16. The referee concluded that Claimant was eligible for benefits under Section 402(b) of the Law but ineligible for benefits under Section 401(d)(1) of the Law for the claim week ending May 16 through the claim week ending July 2, 2011. The referee further concluded that Claimant was ineligible for benefits under Section 402(b) but eligible for benefits under Section 401(d)(1) beginning with the claim week ending July 9. In support, the referee relied on Dr. Hartman's statement in the disability claim form that Claimant could return to part-time work on July 1, 2011 with restrictions. The referee stated that only Employer's insurance carrier was aware of Claimant's medical status as of July 1. Because Claimant was both eligible and ineligible under the different sections of the Law, the referee denied her benefits. Both parties appealed the referee's decision. The Board adopted the referee's findings and conclusions and affirmed his decision. Claimant appealed, and Employer intervened in the appeal.
Claimant argues that she is eligible for benefits under Sections 401(d) and 402(b) of the Law because she was able and available to work with restrictions as of June 16, the date of Dr. Hartman's completion of the medical questionnaire, or July 1, but was not offered suitable work. She disputes the referee's Finding of Fact No. 16, adopted by the Board, that she did not contact Employer to inform it of her availability for work. She maintains that the Board capriciously disregarded the evidence showing that she contacted Employer through her counsel. She claims that Dr. Hartman's statements in the disability claim form and the medical questionnaire established her ability and availability to work part-time in a sedentary position.
Claimant also challenges the referee's findings that she was on a layoff status after Employer told her to report to work on March 11, 2011 (Finding of Fact No. 6), that Dr. Hartman stated in the medical questionnaire that she had not been available for work since May 16 (Finding of Fact No. 14), and that Dr. Hartman stated in the disability claim form that she would be available for part-time work on July 1 (Finding of Fact No. 15). Those findings, however, are supported by her own evidence presented at the hearing. Claimant also complains that the Board failed to make some necessary findings. The Board is required to make only crucial findings of fact on essential issues raised on appeal; it "is not required to address specifically each bit of evidence offered." Pistella v. Workmen's Comp. Appeal Bd. (Samson Buick Body Shop), 633 A.2d 230, 234 (Pa. Cmwlth. 1993). We find that the Board made adequate findings necessary to address the issues raised on appeal. --------
In determining that Claimant was ineligible for benefits under Section 402(b) of the Law, the referee found that Employer was unaware of Claimant's medical status as of July 1 because the disability claim form was returned only to Employer's insurance carrier. The referee concluded that Claimant failed to show "good cause for not contacting the employer regarding her availability for work as of July 1, 2011." Referee's Decision at 3. In its order, the Board stated: "[T]he claimant did not credibly establish that she informed the employer, with sufficient specificity to place the employer on notice, that claimant was available for work and what her specific limitations involved. The claimant failed to credibly establish that she made a reasonable effort to maintain her employment relationship." C.R., Item No. 28. We agree with Claimant that the record does not support the Board's finding that Employer was unaware of Claimant's medical status as of July 1, 2011. It is undisputed that Claimant and Employer communicated only through their counsel after May 6. Contrary to the Board's finding, the completed disability claim form was "faxed to [Employer's] HR Administrator in May," as Employer concedes. Employer's Brief at 18 n.7.
Nonetheless, in order to be eligible for benefits under the Law, Claimant was required to demonstrate that she was able and available to work if a reasonable accommodation was made by Employer because the Law is not intended to provide health and disability benefits for an ill employee who is not physically able and available to participate in the work force. Genetin v. Unemployment Comp. Bd. of Review, 499 Pa. 125, 451 A.2d 1353 (1982). An unemployed worker who registers for benefits is presumed to be able to work and available for suitable work. Pifer v. Unemployment Comp. Bd. of Review, 639 A.2d 1293 (Pa. Cmwlth. 1994). The presumption is rebuttable by evidence that the claimant's physical condition limits the type of work that he or she is available to accept or that the claimant has placed other restrictions on the type of job he or she is willing to accept. Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237 (Pa. Cmwlth. 2011). If the presumption is rebutted, the burden shifts to the claimant to demonstrate that he or she is able and available to perform some type of work. Id. The question of whether the claimant was able and available for suitable work is a question of fact for the Board to determine. McCurdy v. Unemployment Comp. Bd. of Review, 442 A.2d 1230 (Pa. Cmwlth. 1982).
The Board's conclusion that Claimant was eligible for benefits beginning with the claim week ending July 9 is not supported by the evidence in the record. In the medical questionnaire, Dr. Hartman stated that Claimant had been disabled since May 16. He imposed restrictions on lifting and activities involving pushing, pulling, or overhead activities and stated it was not "possible to predict a date on which she [would] be medically able to perform all of these duties on a consistent basis with or without accommodation." C.R., Item No. 16; ¶ 5 of the Medical Questionnaire (emphasis added). Dr. Hartman's statement in the medical questionnaire established that Claimant was unable and unavailable to perform any work since May 16. Hence, Claimant was ineligible for benefits under Section 401(d)(1) for the claim week ending May 16, 2011 and thereafter, and her eligibility under Section 402(b) is irrelevant.
Because the Board correctly denied Claimant benefits although its basis for the decision was incorrect, the Board's order is affirmed. See McWreath v. Dep't of Pub. Welfare, 26 A.3d 1251 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 42 A.3d 295 (2012) (holding that the Court may affirm the lower tribunal's order where the lower tribunal reached a correct result although the basis for the decision is incorrect, if a correct basis for the decision is apparent in the record).
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of February, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge