Opinion
No. 662 C.D. 2014
12-19-2014
Helen Carr, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Helen Carr (Claimant), represented on appeal by counsel, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a referee and denied her unemployment compensation (UC) benefits. The Board found Claimant ineligible for UC benefits pursuant to Sections 402(a) and (b) of the Unemployment Compensation Law (Law) because she refused suitable work and she voluntarily terminated her employment without cause of a necessitous and compelling nature. Claimant asserts her employer, Mustang Enterprises, LLC (Employer), did not timely appeal the local service center's initial decision awarding benefits. In addition, she contends she did not voluntarily quit or refuse work claiming Employer did not provide her suitable work within her medical restrictions. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(a), (b). Under Section 402(a) of the Law, a claimant shall be ineligible to receive compensation for any week in which her unemployment is due to failure, without cause, to apply for suitable work or accept suitable work when offered. 43 P.S. §802(a). Under Section 402(b), a claimant shall be ineligible for compensation for any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. §802(b).
I. Background
Claimant previously received UC benefits, apparently after separation from other employment. Also, she worked as a full-time caregiver from November 2012 to September 2013 for Employer, which provides in-home caregiving services to its clients. Before her September 2013 separation from this employment, Claimant filed her most recent application for UC benefits for the "compensable week/s ending August 10, 2013," which the service center granted. Referee's Op., 1/10/14 at 1. Employer appealed to the referee.
At the hearing, Claimant testified, and Employer presented the testimony of its owner, Jim Stevens (Owner), and its client care manager, Sarah Herbenko (Manager). Based on the evidence presented, the referee made the following relevant findings. In August 2013, Claimant sustained a back injury at work, presumably while trying to reposition a patient. Claimant's physician initially diagnosed Claimant with a lumbar sprain. Claimant attended physical therapy. A few weeks later, Claimant's physician released her to return to work on a light-duty basis. Employer offered Claimant light-duty work, but she was not able to perform the job duties approved by her physician.
In October 2013, Claimant's physician diagnosed her with a back deformity consistent with a compression fracture. Claimant's physician indicated Claimant is able to perform light-duty work, with no lifting or carrying greater than 20 pounds. Employer offered Claimant light-duty work within her physician's restrictions. Claimant refused the work, claiming it hurt her back. After Employer made several offers of work, Claimant went to Employer's facility and insisted the employees stop making her offers of work, claiming they were harassing her.
Claimant made her most recent filing for UC benefits, which the service center granted. In addition to filing for UC benefits, Claimant filed a claim for workers' compensation (WC) benefits. Because of a "mix up" between Claimant's filings, Employer missed the last day to file an appeal of the service center's determination of eligibility - September 26, 2013. Employer filed its appeal on October 18, 2013.
With regard to timeliness, the referee accepted Employer's appeal as timely filed. The referee determined Employer's "mix up" between the UC and WC filings constituted an adequate excuse for the late filing. The referee explained Employer's witnesses testified Employer maintains a fairly small operation, and it made a good faith mistake in mixing up Claimant's UC filings and her WC filings.
As to the merits, the referee determined Claimant was ineligible under Sections 402(a) and (b) of the Law. The referee determined Employer offered Claimant suitable work, within her medical restrictions, including companionship positions, which required no lifting or carrying. However, Claimant refused such work and advised Employer to stop contacting her with offers of employment. The referee determined such actions are inconsistent with demonstrating a desire to work for purposes of unemployment. On this basis, the referee determined Claimant was ineligible for benefits under Section 402(a) of the Law.
Further, the referee concluded Claimant's refusal to return to light-duty work constituted a voluntary quit. Although Claimant established a health problem and informed Employer of it, Employer offered Claimant positions within her medical restrictions. Claimant refused all suitable offers of employment. Claimant did not offer any evidence showing her restrictions were more stringent than the limitations on lifting and carrying. Thus, the referee determined Claimant voluntarily left her employment without a necessitous and compelling reason and denied benefits under Section 402(b) of the Law.
Claimant appealed to the Board, which adopted the referee's findings and conclusions in their entirety and affirmed. From this decision, Claimant now petitions for review.
On appeal, Claimant contends the Board erred by accepting Employer's untimely appeal. In addition, Claimant argues the Board erred in determining she refused suitable work and she did not have a necessitous and compelling reason to leave employment.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
II. Discussion
A. Timeliness of Appeal
First, Claimant contends the Board erred by accepting Employer's untimely appeal where Employer presented no evidence to prove any fraud, administrative breakdown or non-negligent conduct to justify the delay. Employer's Owner admitted receiving the UC notice and his awareness of the appeal procedures, but he simply forgot to timely appeal.
The Board counters the delay in filing was caused by the Department of Labor and Industry's (Department) "mishandling of Claimant's claim." See Respondent's Br. at 8. Employer received multiple notices from the Department, which caused confusion leading to the delayed appeal. In support, the Board relies on two recent unpublished opinions of this Court allowing a late-filed appeal where the delay was caused by reasonable confusion attributable to the Department's conduct. See Boettcher v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 549 C.D. 2013, filed October 21, 2013) (Pellegrini, P.J.) (unreported), 2013 WL 5762232; Walsh v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013) (Brobson, J.) (unreported), 2013 WL 3982771.
Section 414 of this Court's Internal Operating Procedures authorizes the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as binding precedent. 210 Pa. Code §69.414. --------
Under the Law, the failure to file an appeal within 15 days ordinarily mandates the dismissal of the appeal. Section 501(e) of the Law, 43 P.S. §821. Section 501(e) of the Law provides:
(e) Unless the ... last employer ... files an appeal with the board, from the determination contained in any notice required to be furnished by the department ... within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.43 P.S. §821(e) (emphasis added).
This 15-day time limit is mandatory and subject to strict application. Lin v. Unemployment Comp. Bd. of Review, 735 A.2d 697 (Pa. 1999); Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). If an appeal from a determination is not filed within 15 days, the determination becomes final, and neither the Board nor its referees possess jurisdiction to consider the matter. Lin.
Notwithstanding strict application of the rule, a tribunal may consider an untimely appeal in limited circumstances, which is referred to as nunc pro tunc relief. Id. Specifically, "[a]n untimely appeal may be permitted when the delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct, either by a third party or by the appellant." Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012) (quoting Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008)). An appellant must show that either "the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct" or that "non-negligent conduct beyond [the appellant's] control caused the delay." Hessou, 942 A.2d at 198. "The burden to establish the right to have an untimely appeal considered is a heavy one Id.
Recently, in Walsh and Boettcher, this Court permitted late-filed appeals where the Department's conduct in sending multiple notices caused confusion regarding the necessity to appeal. In Walsh, the claimant received UC benefits after a termination from prior employment. She then secured a temporary, part-time job with a second employer. She reported her earnings, which did not affect her receipt of UC benefits. After her resignation from temporary employment, the service center sent the claimant a notice finding her ineligible for benefits, which she appealed. The Department then sent her a second notice of determination again finding her ineligible for benefits because she voluntarily quit. Believing the second notice was part of the initial notice and that the hearing would resolve all of the issues, the claimant did not appeal the second notice. After her hearing, she contacted the service center; a Department representative assured her everything was in order and she would receive a check shortly. Upon learning she would receive no further payments, she appealed the second notice, which the Board dismissed as untimely.
On appeal, we determined the manner in which the service center handled the claimant's separation from employment caused confusion regarding the necessity to appeal the second notice of determination and amounted to a breakdown in the administrative process. Walsh. Speaking through Judge Brobson, we explained:
the [s]ervice [c]enter mistakenly issued the first notice of determination, improperly finding [the] [c]laimant
ineligible. This initial mistake on the part of the [s]ervice [c]enter necessitated a response by [the] [c]laimant. The [s]ervice [c]enter then compounded the mistake when, nineteen days later and apparently based on no change in circumstances, it issued the second notice of determination, finding [the] [c]laimant to be ineligible for yet another improper reason.Id., Slip Op., at 12. Thus, we reversed the Board's order and remanded for further proceedings.
Later, in Boettcher, the Department issued a notice of determination, which incorrectly listed the wrong employer, finding the claimant ineligible for benefits under Section 402(h) of the Law, 43 P.S. §802(h), because he was self-employed. On the same date, the Department sent the claimant a second notice of determination, which correctly listed his employer, informing him that he was not ineligible for benefits under Section 402(h) of the Law. Days later, the Department sent the claimant a third notice, listing his employer and again finding him not ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e) (willful misconduct).
The claimant did not timely appeal the first notice of determination. The claimant believed he would receive benefits because the last two notices of the Department found him not ineligible for benefits and correctly listed his employer. He also believed the Department sent the first notice, which found him ineligible and listed the wrong employer, in error. After the appeal deadline, the claimant inquired about the status of his benefits. Upon learning he would not be receiving benefits, the claimant immediately filed an appeal, which the Board dismissed as untimely.
On appeal, we concluded the Department's actions of sending the claimant separate notices of determination finding him both eligible and ineligible for benefits caused his confusion resulting in his late filing of the appeal and constituted an administrative breakdown. Boettcher. We determined the claimant's untimely appeal warranted nunc pro tunc relief.
Here, Owner explained he was confused because he received multiple notices from the Department. Referee's Hr'g, 11/20/13, Notes of Testimony (N.T.) at 6-7. According to Owner, one of the notices pertained to Claimant's application for UC benefits between April and May of the same year. Id. at 6. Owner explained Claimant "had taken time off to take care of her home up in the mountains that had a flood and she was off for almost two months Id. at 6. Claimant filed for UC benefits. Upon receiving the UC notice from the Department, Owner appealed, but he did not receive any additional information regarding his appeal. Id. at 6-7. Owner then received a second UC notice. At the same time, he received a notice regarding Claimant's WC claim.
Owner testified he was "confused on which appeal it was and also whether [Claimant] was filing for [WC] or she was filing for unemployment." Id. at 6. He continued:
"I was working on worker[s'] comp thinking she was hurt out and then I got a second [n]otice on this unemployment which was very confusing at the time. So that's when I realized what it was, that's when I filed and that's, you know when it's filed late because I was thinking I had filed several months before on the first unemployment and never heard nothing back on that and then I was working
on the worker[s'] comp issue, so you know that's the time issue there was with that."Id. at 7. Manager corroborated Owner's testimony that there was confusion "over which avenue [Claimant] was pursing and which direction we were to follow Id. at 8.
In an attempt at further explanation, the Board asserts the following with regard to the current application for UC benefits, filed August 11, 2013:
Claimant originally filed an application for benefits on March 25, 2012. [before being hired by Employer] (Appendix B) After Employer hired Claimant, she continued to collect benefits. (Appendix B) Employer later received a notice that Claimant had reopened this claim. (N.T. 6) Employer filed an appeal from this reopened claim. (N.T. 6) Employer never heard back from the Department with regard to this reopened claim. (N.T. 6-7)Resp't's Br. at 4-5 (emphasis added).
Claimant also filed an application for benefits dated March 24, 2013. (R. Item No. 1) Claimant had reopened this claim effective August 11, 2013. (R. Item No. 1) Claimant also filed a claim for workers' compensation. (N.T. 6) Employer became confused with the two unemployment claims and the workers' compensation claim. (N.T. 6) The last day for Employer to file a timely appeal from the second notice of determination for the claim dated March 24, 2013, was September 26, 2013. (R. Item No. 4) Due to his confusion, Employer's witness filed a late appeal. (R. Item No. 4) Employer's petition for appeal was received on October 18, 2013. (R. Item No. 5)
The Board determined Employer made a "good faith mistake" in "mixing up" Claimant's UC and WC filings. See Referee's Op., 1/10/14, at 2. As in Walsh and Boettcher, the Department's conduct contributed to Owner's confusion. In particular, the Department's unexplained failure to respond to Employer's timely appeal from Claimant's earlier application, coupled with the timing of Claimant's August 2013 attempt to re-open the March 2013 claim (which was several weeks before her September 2013 separation from employment), and with Claimant's simultaneous attempt to claim different benefits, all contributed to the situation confronting Employer. The rationale for applying nunc pro tunc relief to the claimants in Walsh and Boettcher applies as well to Employer's circumstance in this case. Therefore, we discern no error in the Board's determination to afford nunc pro tunc relief.
B. Voluntary Leave and Suitable Work
Turning to the merits, Claimant argues she is not ineligible for benefits under Section 402 of the Act. According to Claimant, she informed Employer of her medical restrictions, but Employer did not offer her suitable employment. Claimant asserts she was unable to perform the jobs offered because of her medical condition and because the jobs were too far away from her home.
The Board is the ultimate fact-finder in UC matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded to the evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Id. Where substantial evidence supports the Board's findings, they are conclusive on appeal. Id.
Under Section 402(b) of the Law, an employee is ineligible for UC for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. §802(b); Genetin v. Unemployment Comp. Bd. of Review, 451 A.2d 1353 (Pa. 1982). The question of whether an employee has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
Medical problems can create a necessitous and compelling cause to leave employment. Genetin. For a claimant to establish a physical condition or health problem as a cause of a necessitous and compelling nature, the claimant must establish: 1) an adequate health reason existed; 2) the claimant informed the employer of the health concerns; and, 3) the claimant is available to work if suitable work can be offered. Id.
A claimant must be available for suitable work consistent with the medical restrictions to remain eligible for UC benefits. Giant Eagle, Inc. v. Unemployment Comp. Bd. of Review, 700 A.2d 600 (Pa. Cmwlth. 1997). Importantly, a claimant who does not attempt proposed work without good cause is deemed unavailable. See Leonarczyk v. Unemployment Comp. Bd. of Review, 397 A.2d 49 (Pa. Cmwlth. 1979).
Suitable work includes all work that the employee is capable of performing. See Laws v. Unemployment Comp. Bd. of Review, 412 A.2d 1381 (Pa. Cmwlth. 1980). In determining whether particular work is suitable for an individual, this Court considers: the degree of risk to the individual's health and morals, her physical fitness, her prior training and experience, and the distance of the work from her residence. Section 4(t) of the Law, 43 P.S. § 753(t); Laws.
Here, Claimant established a medical problem and informed Employer of it. Initially, her doctor diagnosed her with a lumbar sprain and restricted her to light duty activities with no lifting or carrying greater than 20 pounds. See N.T. at 10; see also Certified Record (C.R.), Item No. 8, Claimant's Ex. No. 3.
In response, Employer offered Claimant light-duty positions to accommodate her condition. The positions were consistent with Claimant's medical restrictions, which restricted carrying and lifting. Although the first position Employer offered fit within Claimant's medical restrictions, Claimant complained it was too physically demanding. N.T. at 10.
At that point, Claimant returned to her doctor, who diagnosed her with a lumbar compression fracture. N.T. at 10; see C.R., Item No. 8, Claimant's Ex. Nos. 4 & 5. Otherwise, her physician reported Claimant is "remarkably healthy" for a 70-year-old woman, and he anticipated her full recovery within four weeks' time. See C.R., Item No. 8, Claimant's Ex. Nos. 4. Although her physician changed Claimant's diagnosis, he did not alter her medical restrictions -- no lifting or carrying more than 20 pounds. See C.R., Item No. 8, Claimant's Ex. No. 4. Claimant offered no evidence regarding any additional medical restrictions imposed.
Notwithstanding, in response to Claimant's complaints, Employer offered Claimant lighter-duty positions, which were physically less demanding and required no lifting or carrying. N.T. at 19. Specifically, Employer offered Claimant companionship-care jobs. Id. One position involved reminding a client to take medication; another involved driving a client to the grocery store. Id. at 19, 28.
However, Claimant refused these jobs on the basis they were too far away from her home or the shifts were too short in duration to make it worthwhile. Id. at 23. Owner responded that, when Claimant was hired, she agreed to work a minimal three-hour shift within a certain territory. Id. The positions offered met those criteria. Moreover, Claimant's physicians did not restrict her ability to drive. See C.R., Item No. 8, Claimant's Ex. Nos. 4 & 5. In fact, Claimant testified she was able to drive and she was looking for full-time work. N.T. at 28, 34. Claimant admitted she could provide companion-type services such as playing cards and getting coffee. Id. at 11-12.
Although Claimant claimed Employer never offered her suitable work accommodating her restrictions, the Board credited Employer's evidence to the contrary. Once Employer offered Claimant suitable work, Claimant had to either accept the work, or establish a necessitous and compelling reason to voluntarily terminate employment. See Leonarczyk. Upon review, Claimant did not establish necessitous and compelling cause for her separation from employment. Claimant not only refused suitable work for reasons unrelated to her medical restrictions, but she directed Employer to stop contacting her with future offers of employment. See N.T. at 31. Thus, the Board properly determined she was ineligible for benefits under Sections 402(a) and (b) of the Law.
III. Conclusion
For these reasons, we discern no error in the Board's decision. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of December, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge