Opinion
No. 2288 C.D. 2012
06-27-2013
Frank Argentieri, 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
Frank Argentieri (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) which upheld the decision of an Unemployment Compensation Referee (Referee) that Claimant did not establish his financial eligibility for Unemployment Compensation (UC) benefits as required by Section 401 of the Unemployment Compensation Law (Law). On appeal, Claimant argues that the finding that he had no earnings in his alternate base year, other than the $19,181.00 he made in the last quarter of 2008, is not supported by substantial evidence because the undisputed evidence established that he had worked for DHL Express (Employer) without interruption from April 7, 1993 until November 5, 2008, when he sustained a work-related injury and became eligible for workers' compensation. Claimant further argues that the Board should have remanded this matter to the Referee for Claimant to present additional evidence of his earnings. For the following reasons, we vacate and remand.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801.
Claimant worked for Employer from April 7, 1993 until December 21, 2011, when he signed a Compromise and Release Agreement with Employer thereby settling his ongoing workers' compensation claim, and Employer did not offer him a modified position. (Claim Record, R. Item 1; Referee's Decision at 2.) Claimant applied for UC benefits on February 5, 2012, and the Philadelphia UC Service Center (Service Center), based on the reported wage information, concluded that Claimant was not financially eligible for UC benefits. (Notice of Determination, R. Item 2.) Claimant appealed, and the Referee held a hearing at which only Claimant, pro se, appeared. Based on the records filed with the Service Center and Claimant's testimony, the Referee made the following findings of fact.
1. The claimant filed an application for benefits with an effective date of February 5, 2012 thereby establishing for eligibility purposes a base year from October 1, 2010 to September 30, 2011.
2. The claimant suffered a work related injury on November 5, 2008.
3. The claimant was determined eligible for Work[ers'] Compensation.
4. The claimant is entitled to an alternate base year of October 1, 2007 through September 30, 2008.(Referee Decision, Findings of Fact (FOF) ¶¶ 1-7.) The Referee concluded that Claimant was financially ineligible for UC benefits pursuant to Section 401(a) of the Law, 43 P.S. § 801(a) (requiring "not less than twenty per centum (20%) of the employee's total base year wages have been paid in one or more quarters, other than the highest quarter in the employee's base year"), because Claimant did not have the required wages during either his base year or his alternate base year. (Referee Decision at 2.) The Referee noted that Claimant's Claim Record reported wages only in the third quarter of 2008 in the amount of $19,181.00. (Referee Decision at 2.)
5. The claimant had wages in the third quarter of 2008, which totaled $19,181.00 when his base year was October 1, 2007 to September 30, 2008.
6. The claimant had wages in the third quarter of 2011, which totaled $19,181.00 when his base year was October 1, 2010 to September 30, 2011.
7. The claimant had no other earnings to report.
The Board acknowledges that Finding of Fact 6 is erroneous and that Claimant had no earnings in 2011. (Board's Br. at 6 n.3.)
Section 401(a) was amended by Section 10 of the Act of June 12, 2012, P.L. 577, effective January 1, 2013, and increased the amount from 20% to not less than 49.5%. Because Claimant's application for benefits was filed before January 1, 2013 the prior provisions of Section 401(a) apply.
Claimant appealed to the Board, asserting that, notwithstanding the report showing one quarter of earnings in his alternate base year, he had earnings from Employer since 1993 and had W2s to prove it. (Claimant's Petition for Appeal to the Board, R. Item 9.) The Board concluded that the Referee's Decision was proper under the Law, adopted and incorporated the Referee's findings and conclusions into its Order, and affirmed the Referee's Decision. (Board Order.) The Board denied Claimant's request for a remand to present additional evidence because "[C]laimant had an opportunity to provide evidence of other wages earned in his alternate base year at the Referee's hearing." (Board Order.) Claimant now petitions this Court for review.
"The Court's review 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 and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant argues that the Board erred in concluding that he was financially ineligible for UC benefits because its finding that "[C]laimant had no other earnings to report," (FOF ¶ 7), in his alternate base year (other than the $19,181.00 reported in the third quarter) is not supported by the record. Claimant asserts it is undisputed that Claimant worked full time for Employer during the alternate base year without interruption and, therefore, the Board's conclusion that he did not have the required earnings for financial eligibility is an error of law. Claimant requests that this Court either reverse the Board and declare him eligible for UC benefits or remand this matter in order for him to present additional testimony that "will unequivocally establish earnings in all four quarters of the alternate base year." (Claimant's Br. at 10.)
The Board responds that Claimant bore the burden of proving that he had the required amount of wages to support his eligibility for UC benefits, but did not provide sufficient evidence to meet his burden. The Board contends that Claimant "may well . . . [have] earn[ed] wages during those quarters," but "the record does not reflect those wages, if they exist." (Board's Br. at 7.) Finally, the Board notes that Claimant has not provided good cause for a remand because Claimant had the opportunity to present such evidence at the Referee's hearing.
Claimant bears the burden of establishing his financial eligibility for UC benefits. Pagliei v. Unemployment Compensation Board of Review, 37 A.3d 24, 26 (Pa. Cmwlth. 2012). "To be eligible for benefits during a benefit year (52 weeks following a valid application for benefits), a claimant must have sufficient wages in covered employment during the base year (first four of the last five completed calendar quarters immediately preceding the first day of the individual's benefit year)." Dorn v. Unemployment Compensation Board of Review, 866 A.2d 497, 501 (Pa. Cmwlth. 2005) (quotations omitted). Based on Claimant's application date of February 5, 2012, his base year would have been October 1, 2010 to September 30, 2011. (FOF ¶ 1.) However, Claimant was entitled to use an alternate base year pursuant to Section 204(b) of the Workers' Compensation Act (WC Act) because he was determined to be eligible for workers' compensation benefits as of November 5, 2008. Section 204(b) of the WC Act provides:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 71(b).
For the exclusive purpose of determining eligibility for compensation under . . . the [Law], any employe who does not meet the monetary and credit week requirements under [S]ection 401(a) of
[the Law] due to a work-related injury compensable under this act may elect to have his base year consist of the four complete calendar quarters immediately preceding the date of the work-related injury.77 P.S. § 71(b) (emphasis added). Applying Section 204(b) of the WC Act, Claimant's alternate base year was October 1, 2007 to September 30, 2008, based on Claimant's sustaining a work-related injury on November 5, 2008. (FOF ¶¶ 2, 5.) At issue here is whether Claimant satisfied Section 401(a) of the Law, which provides that UC benefits are available to an unemployed person who:
Has, within his base year, been paid wages for employment as required by [S]ection 404(c) [(related to the number of credit weeks an employe must have to be eligible for UC benefits for a particular period of time)] of this [Law]: Provided, however, That not less than twenty per centum (20%) of the employe's total base year wages have been paid in one or more quarters, other than the highest quarter in such employe's base year.43 P.S. § 801(a).
A review of the record reveals that it contains multiple determinations, which have created confusion and error regarding what Claimant's relevant base year was and what he earned during that base year. Claimant was issued two "revised" financial determinations, both on June 28, 2012. The first reported that Claimant earned $19,181.00 in the third quarter of 2011 (2011 Determination). (Service Center Ex. SC4, R. Item 2.) The 2011 Determination was based on Claimant's base year of October 1, 2010 to September 30, 2011. The 2011 Determination stated that
Based on a comparison of your highest quarter and your total base-year wages to the table for "Rate and Amount of Benefits" [(Section 404(e)(1) of the Law, 43 P.S. § 804(e)(1))], you do not have sufficient wages in your base year to qualify for benefits. Your highest quarter
(rounded to the nearest dollar) was the 3rd quarter of 2011 when you were paid $19,182. Your total base-year wages were $19,181.(Service Center Ex. SC4, R. Item 2 (bold emphasis in original).) The second revised determination reported that Claimant had earned $19,181.00 in the third quarter of 2008 (2008 Determination). The 2008 Determination indicated that it was issued in accordance with Section 204(b) of the WC Act and found Claimant financially ineligible based on Claimant's earnings for his base year from October 1, 2007 to September 30, 2008. (Service Center Ex. SC3, R. Item 3.) The 2008 Determination stated that
IMPORTANT
Please recheck the wage information listed above for accuracy. Is your Social Security Account Number correct? Were any base-year employers omitted from this determination? Did you work in another State or for the Federal government during the base year? Are there any discrepancies in wages between this determination and your records or records you obtained from your employer(s)? If so, it is very important that you immediately notify the UC Service Center so action can be taken to correct this determination. Have this determination available when you contact the UC Service Center along with any work evidence (pay stubs, W-2 Form(s), separation notices, etc.) you have for your base year.
Right of Appeal - The last day to timely appeal this determination is JUL 13, 2012. If you disagree with this determination, you may appeal. If you want to file an appeal, you must do so on or before the date shown above.
Based on a comparison of your highest quarter and your total base-year wages to the table for "Rate and Amount of Benefits" [(Section 404(e)(1) of the Law, 43 P.S. § 804(e)(1))], you do not have sufficient wages in your base year to qualify for benefits. Your highest quarter (rounded to the nearest dollar) was the 3rd quarter of 2008 when you were paid wages of $19,182. Your total base-year wages were $19,181 . . . .
Right of Appeal - The last day to timely appeal this determination is JUL 13, 2012. If you disagree with this determination, you may appeal. If you want to file an appeal, you must do so on or before the date shown above.(Service Center Ex. SC 3 (emphasis in original).) Claimant's appeal, to which he attached the 2008 Determination, asserted that he worked for Employer from 1993 until 2008, there had never been a gap in his employment, he was injured in 2008, had been on workers' compensation until December 2011, and had earned over $70,000 a year between 2005 and 2008. (Petition for Appeal, R. Item 3.) The record reveals that, after Claimant filed his appeal, the UC authorities issued an internal "Appeal Memo" which indicated whether a "Wage investigation" occurred but, despite Claimant's assertion in his appeal that he earned more than what Employer reported, the Appeal Memo states that there was "No Wage investigation to attach" because it was a workers' compensation case. (Appeal Memo, July 10, 2012, R. Item 4.)
The Referee admitted both the 2011 Determination and the 2008 Determination into the record. (Hr'g Tr. at 2, R. Item 7.) The issuance of these two financial determinations, one of which the Board now acknowledges is erroneous (the 2011 Determination), (Board's Br. at 6 n.3), created confusion during the Referee's hearing regarding what base year the Referee should be reviewing. During the hearing, the Referee repeatedly inquired about Claimant's income related to the 2011 Determination, (Hr'g Tr. at 4-5), as follows:
R Did you work from October to December of 2010 at all?
C No, ma'am.
R Did you work from January to March of 2011?
C No, ma'am.(Hr'g Tr. at 4-5.) The Referee did not further question Claimant on his alternate base year. Claimant testified that he began working for Employer in June of 1993, his last day of physical work was November 5, 2008, and the last day he was employed by Employer was December 21, 2011. (Hr'g Tr. at 3, 5.) Claimant's testimony is consistent with his Claim Record, which was admitted into evidence and shows that he worked for Employer for over fifteen years. The Claim Record identifies Employer as a separating employer and notes that Claimant's first day of work was on April 7, 1993 and his last day of work was November 5, 2008, for a total length of employment of "15 YRS 07 MOS." (Claim Record at 2-3, R. Item 1.) This period of employment encompasses Claimant's entire alternate base year.
R Did you work from April through June?
C 2011? No.
R Then how come there is income for the third quarter [of 2011] of $19,181? What is that income?
C Yea, what date is - - what year?
R It's for . . .
C I believe - - I filed for an alternate base-year, and believe that is 2008.
R So in the third quarter of 2011, you were paid $19,182, which was your income for your last quarter of 2000 [sic] and - - not even your last - yes, your last quarter of 2008? Is that what you're saying?
C I was not paid at that time. I was paid in 2008.
R Yeah. But that's what I'm asking.
C Yes.
R Was this the income that you were paid in 2008 . . .
C Yes.
R . . . in the last quarter of 2008?
C Yes.
Notwithstanding Claimant's testimony that he neither worked nor was paid wages during the period reflected in the 2011 Determination, the Referee found that Claimant had earnings of $19,181.00 in the third quarter of both 2008 and 2011. (FOF ¶¶ 5-6.) The Referee also found that Claimant had no other earnings to report from Employer. (FOF ¶ 7.) Although the Board now acknowledges that the 2011 Determination was erroneous, it made no reference to that error in its Order and adopted all of the Referee's findings of fact and conclusions as its own. (Board Order.) This further perpetuated the confusion over what Claimant's correct base year is and what his earnings are for that base year, as well as the error that Claimant had earnings in 2011.
We are asked to determine, based on this record, whether the Board: (1) capriciously disregarded evidence when it found that Claimant had no other earnings to report for his alternate base year; and (2) abused its discretion in not remanding this matter for further evidence of what Claimant's earnings were during the other three quarters of his alternate base year. Given the undisputed evidence that Claimant worked for Employer during his alternate base year and the errors and confusion present in the record, we answer both questions in the affirmative.
"[A]n adjudication cannot be in accordance with [the] law if it is not decided on the basis of law and facts properly adduced"; therefore, appellate "review for [the] capricious disregard of material, competent evidence is an appropriate component of appellate consideration" if such disregard is properly before the reviewing court. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Here, Claimant argues that the Board completely disregarded the undisputed evidence that he worked for Employer for his entire alternate base year. The Board, itself, acknowledges that the capricious disregard standard is applicable here. (Board's Br. at 7 n.4.) When considering whether there was a capricious disregard of the evidence, we must decide "if the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important." Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007).
The Board correctly notes that Employer's wage report shows wages of $19,181.00 in only one quarter of Claimant's alternate base year, the third quarter of 2008, (Service Center Ex. SC 9, R. Item 1), and, therefore, it would appear that Claimant does not satisfy the requirements of Section 401(a). However, the record also shows that Claimant worked for Employer from April 7, 1993 until his last day of work on November 5, 2008, for a total of length of employment of "15 YRS 07 MOS." (Claim Record at 2-3.) This period of employment encompasses Claimant's entire alternate base year. Notwithstanding the fact that Employer indicated that it employed Claimant for over fifteen years, including the period covered in Claimant's alternate base year, Employer reported only wages for one quarter. In addition to this documentary evidence, Claimant testified that he started working for Employer in "June of 1993," his last day of "physical work" was November 5, 2008, and his last day of employment was December 21, 2011. (Hr'g Tr. at 3.)
This exhibit erroneously states that Claimant's earnings occurred in the third quarter of 2011.
We note that, pursuant to the regulation at 34 Pa. Code § 63.52(c), employers are responsible for reporting to the UC authorities, inter alia, the wages paid to each employee on a quarterly basis.
Considering this evidence under the capricious disregard standard, we hold that the Board disregarded competent evidence that "a person of ordinary intelligence could not conceivably have avoided," Jackson, 933 A.2d at 156 n.4, to reach its conclusion that Claimant only earned wages in the third quarter of his alternate base year. Employer apparently did not report Claimant's earnings during those three 2008 quarters as it was required to do by regulation 34 Pa. Code § 63.52(c), but there is no dispute that Claimant worked for Employer during that time period. A person of ordinary intelligence would conclude, based on the evidence that an individual worked for the same employer for fifteen years and the evidence indicating payment by that employer for only one quarter of one of those fifteen years, that the individual also received payment for the other three quarters of that year.
The Board argues that Claimant should have presented evidence of his specific earnings for the rest of his base year and his failure to do so supports its determination of ineligibility. In presenting his evidence, Claimant believed that the UC authorities had the documentation necessary to show what he earned for Employer during that relevant time period. (Hr'g Tr. at 4.) We note that the 2008 Determination and the 2011 Determination provided different instructions to Claimant regarding challenging their respective findings of financial ineligibility. The 2011 Determination provided specific instructions on how to challenge the accuracy of Employer's reported wages, while the 2008 Determination provided no such instructions. Although the UC authorities are under no obligation to provide instructions regarding how to correct wage information in this case, giving instructions only on the inapplicable 2011 Determination and not on the inaccurate 2008 Determination can create confusion for a claimant who receives both. The confusion regarding the need for additional information pertaining to Claimant's earnings in the alternate base year proceedings appears to have been shared by the UC authorities. Thus, this is not a situation where a claimant simply did not present supporting documentation for his claim.
Indeed, such a belief appears consistent with the Appeal Memo indicating that there was "No Wage investigation to attach" because the matter was a workers' compensation case. (Appeal Memo, July 10, 2012, R. Item 4.) --------
With regard to Claimant's remand request, Section 101.104 of the UC regulations, 34 Pa. Code § 101.104, provides that a "further appeal shall be allowed and additional evidence required in any of the following circumstances: . . . Whenever the further appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous." (Emphasis added.) We review the Board's decision regarding remand under an abuse of discretion standard. Kiehl v. Unemployment Compensation Board of Review, 747 A.2d 954, 957 (Pa. Cmwlth. 1999).
As noted above, the record contains multiple errors. First, the erroneous reporting of wages in 2011 and the 2011 Determination led to confusion at the hearing regarding Claimant's proper base year. Second, the inconsistent instructions on the 2008 Determination and 2011 Determination received by Claimant are confusing. Third, the Referee's focus during the hearing, and in her decision, on the now admittedly erroneous 2011 Determination, and the Board's acceptance of that erroneous factual finding and conclusion of law as its own, further supports remand to ensure that the correct base year and wages are being considered in this matter. Finally, despite the undisputed evidence that Claimant worked for Employer during all four quarters of his alternate base year, Employer reported only one quarter of those earnings to the UC authorities; therefore, the question of the amount Claimant earned during the remaining three quarters is "a material point on which the record is silent or incomplete." 34 Pa. Code § 101.104. For these reasons, we conclude that the Board abused its discretion in not remanding this matter for additional evidence to determine what Claimant's earnings were during the additional three quarters of his alternate base year, a time period in which it was undisputed that he worked for Employer.
Accordingly, the Board's Order is vacated, and this matter is remanded to the Board to conduct another hearing to determine what Claimant's earnings were during his alternate base year.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 27, 2013, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby VACATED and this matter is REMANDED for further proceedings in accordance with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge