Opinion
No. 640 C.D. 2012
11-16-2012
Alexander Chang, M.D., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Alexander Chang, M.D. (Employer) petitions this court for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed and adopted the referee's determination that Jean M. Roberts (Claimant) was not ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. 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 an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e).
Claimant was employed by Employer as a Receptionist/Optician from April 2006 through October 6, 2011. (Record Item (R. Item) 10, Referee's Decision and Order, Findings of Fact (F.F.) ¶1, Reproduced Record (R.R.) at 36a; R. Item 9, Hearing Transcript (H.T.) at 3-4, R.R. at 23a-24a.) Claimant suffered a lower back injury at work on August 8, 2011 for which she filed a workers' compensation claim and was off work because of that injury until October 3, 2011. (R. Item 10, F.F. ¶¶5-7, R.R. at 36a; R. Item 9, H.T. at 8-10, R.R. at 28a-30a.) In late September 2011, her physician cleared her to return to sedentary work with some physical restrictions. (R. Item 3, Employer Separation Information, Document No. 6 Physician's Physical Capabilities Checklist; R. Item 9, H.T. at 4, R.R. at 24a.) Following notification from Employer that there was work available within her physical restrictions, Claimant returned to work on October 3, 2011. (R. Item 10, F.F. ¶8, R.R. at 36a; R. Item 3, Employer Separation Information Document No. 4, Employer September 26, 2011 Letter to Claimant.)
Employer has two offices, one in Ellwood City, Pennsylvania, and the other in Scott Township, Pennsylvania, approximately forty miles apart. (R. Item 10, F.F. ¶2, R.R. at 36a; R. Item 9, H.T. at 5-6, R.R. at 25a-26a.) While the Ellwood City office is two to three minutes from Claimant's home, the Scott Township office is a fifty-minute drive from Claimant's home. (R. Item 10, F.F. ¶¶3-4, R.R. at 36a; R. Item 9, H.T. at 8, R.R. at 28a.) Before her injury, Claimant worked primarily in the Ellwood City office. (R. Item 10, F.F. ¶3, R.R. at 36a; R. Item 9, H.T. at 6, 8, R.R. at 26a, 28a.) When she returned to work, however, Claimant was told that she was scheduled to work 11 days in the Scott Township office and 10 days in the Ellwood City office. (R. Item 10, F.F. ¶¶9-10, R.R. at 36a; R. Item 9, H.T. at 6-7, R.R. at 26a-27a.) Claimant told Employer that she was still under treatment and taking medication for her injury and that she could not travel to the Scott Township office because the medication made her too dizzy and drowsy to safely drive that distance. (R. Item 10, F.F. ¶11, R.R. at 37a; R. Item 9, H.T. at 6-7, 9-10, R.R. at 26a-27a, 29a-30a; R. Item 3, Employer Separation Information Document No. 7, Claimant October 4, 2011 Letter to Employer.) On October 6, 2011, Employer discharged Claimant for refusing to work at the Scott Township office. (R. Item 10, F.F. ¶12, R.R. at 37a; R. Item 9, H.T. at 4, R.R. at 24a; R. Item 3, Employer Separation Information, R.R. at 6a-8a; R. Item 3, Employer Separation Information Document No. 5, Employer October 10, 2011 Letter to Claimant.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible. In making this determination, the Service Center considered whether Claimant had been discharged by Employer or had voluntarily quit, found that Claimant was discharged, and found that Employer had not shown that Claimant had committed willful misconduct. (R. Item 5, Service Center Notice of Determination, R.R. at 12a.)
Employer appealed and the referee conducted a hearing during which Claimant and Employer's Human Resources Manager testified and correspondence between Employer and Claimant and other documents from the claim file were introduced in evidence. At the hearing, there was no dispute that Employer fired Claimant and that Claimant was discharged on October 6, 2011. (R. Item 9, H.T. at 3-5, 11, R.R. at 23a-25a, 31a.) Employer's Human Resources Manager testified:
R[eferee]: Employer, what can you tell me? Did the Claimant - did she quit or was she fired?
E[mployer] W[itness]: She was terminated.
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R[eferee]: Okay. When was she discharged?
E[mployer] W[itness]: October 6th.
(R. Item 9, H.T. at 4-5, R.R. at 24a-25a.)
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R[eferee]: Okay. So, October 6th was her last day at work and that's when she was discharged?
E[mployer] W[itness]: Right.
It was also undisputed that Claimant told Employer that she could not work in the Scott Township office because the effects of the medication she was on made it unsafe for her to drive the distance from her home to the Scott Township office. (R. Item 9, H.T. at 6, 9-10, R.R. at 26a, 29a-30a; R. Item 3, Employer Separation Information, R.R. at 6a; R. Item 3, Employer Separation Information Document No. 5, Employer October 10, 2011 Letter to Claimant.) On the Physical Capabilities Checklist clearing Claimant to return to work, the physician had checked the box "Occasionally," which was defined as "1-3 hours," in response to questions as to whether Claimant could drive a car during the workday. (R. Item 3, Employer Separation Information Document No. 6, Physician's Physical Capabilities Checklist.) In support of her claim for benefits, Claimant submitted an October 14, 2011 note signed by a prescribing physician's assistant stating that Claimant was "unable to drive long distances due to drowsiness caused by meds." (R. Item 4, Note of Shannon E. Bonanno, PA-C, R.R. at 10a.)
Employer contended at the hearing that Claimant was fired because she refused to work in the Scott Township office and failed to respond to requests from Employer for medical certification of her inability to drive to that office. (R. Item 9, H.T. at 4-5, 11, R.R. at 24a-25a, 31a.) Employer's Human Resources Manager testified that "at the time of her termination" she had told Claimant that "if you provide me with accurate documentation stating that there's a compelling medical reason that you can't make this drive we'll revisit it." (R. Item 9, H.T. at 4, R.R. at 24a.) Employer stated, in its response to the claim for unemployment benefits, that the reason for Claimant's discharge was "Refusal to work in branch office." (R. Item 3, Employer Separation Information, R.R. at 8a.) In addition, Employer's Human Resources Manager's letter to Claimant on October 10, 2011 stated that Claimant was terminated because her refusal to work at the Scott Township office interfered with Employer's ability to run its business and disputed that she was medically unable to travel to that office, but gave no indication that Claimant was requested to submit medical documentation or that the termination could be reconsidered. (R. Item 3, Employer Separation Information Document No. 5, Employer October 10, 2011 Letter to Claimant.) In that letter, Employer's Human Resources Manager stated:
You were sent a schedule for the month of October providing you with the 32 hours working both Ellwood and Scott Township as you have done in the past when our business needs demanded it. Since October 1 you have stated that you are unable to drive to the Scott office due to your medications. We have no evidence from your physician that driving is restricted. In fact, according to your release, you are able to drive for 1-3 hours at a time.(R. Item 3, Employer Separation Information Document No. 5, Employer October 10, 2011 Letter to Claimant.)
In order to effectively run our business we must have employees who we can count on to be at work when scheduled. Your unwillingness to work scheduled hours negatively impacts our ability to run our business and leaves us with no alternative but to terminate your employment with Chang Eye Group effective immediately.
The referee found that Claimant was involuntarily discharged for refusing to work at the Scott Township office, not for failure to comply with any request for medical documentation. (R. Item 10, F.F. ¶12, R.R. at 37a.) The referee concluded that Claimant's refusal did not constitute willful misconduct given her concern that she could not safely drive that distance because of the effects of the medication she was taking and therefore rejected Employer's contention that Claimant was ineligible for unemployment benefits. (R. Item 10, Referee's Decision and Order at 2, R.R. 37a.) Employer appealed to the Board and the Board on March 15, 2012 affirmed and adopted the referee's decision. (R. Item 12, Board Order, R.R. at 44a.) Employer timely filed a petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision is limited to determining whether errors of law was committed, constitutional rights were violated, and necessary findings of fact were supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 341 n.2 (Pa. Cmwlth. 2008); Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 n.5 (Pa. Cmwlth. 2004) (en banc).
It is well-settled that in unemployment compensation cases the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997); Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004) (en banc). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456; Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010); Eshbach, 855 A.2d at 947 n.6.
In determining whether a refusal or failure to comply with an employer directive constitutes willful misconduct, the claimant's actions must be considered in light of all the circumstances, including the claimant's reasons for noncompliance. Philadelphia Parking Authority, 1 A.3d at 968; Eshbach, 855 A.2d at 947-48. "Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it cannot properly be charged as a willful disregard of the employer's intent or rules or of the standard of conduct which the employer has a right to expect." Eshbach, 855 A.2d at 948; see also Perez v. Unemployment Compensation Board of Review, 736 A.2d 737, 741 n.5 (Pa. Cmwlth. 1999). The fact that the employer had cause to dismiss the claimant based on its work rules or business needs does not automatically make the claimant's actions willful misconduct. Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1215 (Pa. Cmwlth. 1996); Breininger v. Unemployment Compensation Board of Review, 520 A.2d 949, 952 (Pa. Cmwlth. 1987); Travor v. Unemployment Compensation Board of Review, 449 A.2d 814, 816 (Pa. Cmwlth. 1982); Schwab v. Unemployment Compensation Board of Review, 427 A.2d 789, 791 (Pa. Cmwlth. 1981). "In a willful misconduct case, the issue is not whether the employer has a right to discharge the employee for the conduct in question, but rather the state must show that it is justified in reinforcing the employer's decision by denying benefits for such conduct." Webb, 670 A.2d at 1215.
If the employer shows that the claimant did not comply with a reasonable directive, the burden shifts to the claimant to demonstrate good cause for the failure or refusal to comply. Philadelphia Parking Authority, 1 A.3d at 968; Perez, 736 A.2d at 741 n.5; Blue v. Unemployment Compensation Board of Review, 616 A.2d 84, 86-87 (Pa. Cmwlth. 1992). A claimant's medical condition can constitute good cause for refusal to comply with an employer's directive. Philadelphia Parking Authority, 1 A.3d at 968; Krentsel v. Unemployment Compensation Board of Review, 471 A.2d 178, 180 (Pa. Cmwlth. 1984); Schwab, 427 A.2d at 791. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456; Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Employer argues that the Board erred in finding that Claimant was discharged for refusal to work at the Scott Township office, rather than for failure to provide medical documentation, and in finding that Claimant's refusal was justified because she was on medications that made it unsafe for her to drive that distance, claiming that those findings are not supported by substantial evidence. Contrary to Employer's contentions, however, the record demonstrates that both of these findings are supported by substantial evidence.
There is substantial evidence in the record that Employer terminated Claimant solely for her refusal to work in the Scott Township office and did not request that she provide medical documentation. Not only did Employer's response to the claim for benefits state unambiguously that Claimant was terminated for "Refusal to work in branch office" (R. Item 3, Employer Separation Information, R.R. at 8a), but Employer's termination letter to Claimant stated that she was discharged because her "unwillingness to work scheduled hours negatively impacts our ability to run our business," and did not make any request for medical documentation or indicate that she had failed to respond to any request for information of any kind. (R. Item 3, Employer Separation Information Document No. 5, Employer October 10, 2011 Letter to Claimant.) Indeed, Employer's Human Resources Manager admitted that "when I terminated her it was for her refusal to go to the other office." (R. Item 9, H.T. at 4, R.R. at 24a.) While Employer's Human Resources Manager did testify that she requested a doctor's statement supporting Claimant's inability to drive to the Scott Township office and that Claimant did not comply, she admitted that she made that request to Claimant on October 6, 2011 at the time that she terminated Claimant's employment. (R. Item 9, H.T. at 4, R.R. at 24a.) Moreover, the Board was not required to find that testimony credible, particularly when it was not supported by her own letter to Claimant. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010) (Board is the judge of witness credibility); Ductmate Industries, 949 A.2d at 342 (same).
The Board's determination that Claimant had shown good cause for her refusal to work in the Scott Township office is also supported by substantial evidence. Claimant testified that she was taking two muscle relaxer medications for her injury that "made me very drowsy and once in a while I get dizzy" and that she did not feel it was safe for her to drive the fifty minutes each way to the Scott Township office while taking those medications. (R. Item 9, H.T. at 8-10, R.R. at 28a-30a.) Her testimony was corroborated by a medical note that she was "unable to drive long distances due to drowsiness caused by meds." (R. Item 4, Note of Shannon E. Bonanno, PA-C, R.R. at 10a.) This evidence was sufficient to meet Claimant's burden to show that her refusal to work at the Scott Township office was justified. An unemployment compensation claimant is not required to provide expert testimony of a physician to support a health related justification for her actions and need only introduce competent evidence of the health condition or problem. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 371-73, 453 A.2d 591, 593-94 (1982); Philadelphia Parking Authority, 1 A.3d at 968-69; Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994); Goettler Distributing, Inc. v. Unemployment Compensation Board of Review, 508 A.2d 630, 631 (Pa. Cmwlth. 1986). The claimant's own testimony coupled with supporting documentation constitutes competent evidence sufficient to satisfy the claimant's burden of proof and support a finding in favor of the claimant. Steffy, 499 Pa. at 371-73, 453 A.2d at 593-94; Philadelphia Parking Authority, 1 A.3d at 968-69; Goettler Distributing, 508 A.2d at 631.
This Court has also stated that the claimant's testimony and/or supporting documentation is sufficient to support a finding that claimant's actions were justified by a health condition and that the claimant's testimony alone can therefore be sufficient. Philadelphia Parking Authority, 1 A.3d at 969 & n.3; Lee Hospital, 637 A.2d at 698-99; Goettler Distributing, 508 A.2d at 632. While the Court has noted that it may want to revisit this issue, Philadelphia Parking Authority, 1 A.3d at 969 n.3, it is unnecessary to do so here, as Claimant provided a medical document corroborating her testimony. --------
The fact that the medical note was from a physician's assistant, rather than a physician, does not make Claimant's evidence insufficient to support the Board's finding. The medical issue here was not whether Claimant had a particular illness or the cause of a medical condition; it was whether her prescription medications made her drowsy. It is clear from the face of the medical note that the physician's assistant was licensed and authorized to prescribe medication. (R. Item 4, Note of Shannon E. Bonanno, PA-C, R.R. at 10a.) The physician's assistant would therefore be competent to opine on its side effects. Moreover, whether she was drowsy after taking the medications and felt unsafe driving would be a matter much more within Claimant's personal knowledge than the diagnosis of an illness. Nor does the doctor's Physical Capabilities Checklist preclude the Board's conclusion that Claimant's conduct was reasonable. The Physical Capabilities Checklist does not contain any discussion of medications that Claimant was taking or evaluation of their effects. Rather, it addressed and checked off whether her back injury prevented her from performing various physical activities. (R. Item 3, Employer Separation Information Document No. 6, Physician's Physical Capabilities Checklist).
Employer also argues that Claimant had a duty to take reasonable steps to obtain alternative transportation and failed to cooperate with requests from Employer for medical documentation. Neither of these arguments is meritorious.
Our rulings that a claimant must show an attempt to resolve transportation difficulties are in cases where the claimant has quit his or her job or failed to accept suitable work, not where the employer has fired the claimant. See, e.g., Carter v. Unemployment Compensation Board of Review, 442 A.2d 1245 (Pa. Cmwlth. 1982) (failure to accept suitable work); Yurack v. Unemployment Compensation Board of Review, 435 A.2d 663 (Pa. Cmwlth. 1981) (voluntary quit); Lee v. Unemployment Compensation Board of Review, 401 A.2d 12 (Pa. Cmwlth. 1979) (voluntary quit). The reasons for the claimant's duty in such cases are that the claimant must try to preserve the employment relationship before severing it, Yurack, 435 A.2d at 664; Lee, 401 A.2d at 13, and that the claimant must show a desire to work and be self-supporting. Carter, 442 A.2d at 1247.
Those reasons have no applicability to a case, such as this, where it is the employer, not the claimant, who severed the employment relationship. In a willful misconduct case, because it is the employer who chose to terminate the claimant's employment, the claimant's obligation is to notify the employer of the reason for refusing to comply with the employer's directive. Waltz v. Unemployment Compensation Board of Review, 533 A.2d 199, 201 (Pa. Cmwlth. 1987) (claimant's obligations in voluntary quit cases to resolve problems do not apply to involuntary terminations). There is no dispute that Claimant met that obligation to notify here - Employer's Human Resources Manager testified that Claimant told her that she could not drive to the Scott Township office because of her medication. (R. Item 9, H.T. at 6, R.R. at 26a). There was, moreover, no evidence that Employer proposed or tried to facilitate alternative transportation before discharging Claimant or that Claimant refused any transportation alternative. Compare Carter, 442 A.2d at 1247 (claimant did not want to drive the distance in question even though he had driven comparable distances in the past); Yurack, 435 A.2d at 664 (claimant resigned without giving employer the opportunity to facilitate alternative transportation); Lee, 401 A.2d at 13 (record showed that claimant had other viable transportation options).
Employer's contention that the Board's order should be reversed because Claimant did not provide medical documentation to Employer likewise fails. While a claimant's refusal to comply with a request for medical documentation can constitute willful misconduct, Department of Agriculture v. Unemployment Compensation Board of Review, 403 A.2d 237 (Pa. Cmwlth. 1979); Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890 (Pa. Cmwlth. 1976), that principle has no applicability here, given the Board's factual findings. As discussed above, the Board rejected Employer's claim that Claimant was requested to provide medical documentation and was discharged for failure to do so and that finding is supported by substantial evidence. Where the Board's findings of fact are supported by substantial evidence, they are binding on this Court even if there is other contrary evidence. Bruce, 2 A.3d at 671-72; Ductmate Industries, 949 A.2d at 342. Because Claimant was not discharged for failure to comply with any request for medical documentation, the fact that she submitted medical certification of her inability to drive to the Scott Township office to the Unemployment Compensation Service Center, rather than to Employer, cannot constitute willful misconduct. Travor, 449 A.2d at 815-16; Pauline v. Unemployment Compensation Board of Review, 423 A.2d 55, 56-57 (Pa. Cmwlth. 1980).
Accordingly, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 16th day of November, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge