Opinion
No. 1077 C.D. 2014
01-08-2015
Willena Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Willena A. Davis (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) affirming a UC Referee's (Referee) Decision denying her claim for UC benefits pursuant to Section 401(d)(1) of the UC Law (Law). On appeal, Claimant argues that the Board erred in ruling that she was not able and available for suitable work. Also before this Court for disposition is the Board's "Application for Relief in the Form of a Motion to Quash Claimant's Petition for Review and Brief and Dismiss her Appeal" (Motion to Quash).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Section 401(d)(1) provides that "[c]ompensation shall be payable to any employe who is or becomes unemployed, and who . . . [i]s able to work and available for suitable work." Id.
Claimant applied for UC benefits after going on an approved medical leave of absence from her employment with the City of Philadelphia-Prisons (Employer). (Referee Decision, Findings of Fact (FOF) ¶¶ 1, 4.) Claimant indicated on her application for UC benefits that she was not able to work because her injuries limit her activities, she is in constant pain, and the medication she takes makes her "sleepy and unable to function." (Internet Initial Claims at 5, R. Item 2.) Claimant also indicated that she was not available for work until her injuries and pain subsides. (Internet Initial Claims at 5.) Also, in the additional information section of her application, Claimant wrote, "I am willing to return back to my job as soon as I begin to feel back to my regular self, before the injuries that I sustained are healed. I am able to return to my old job without any issues. I am just temporarily unemployed." (Internet Initial Claims at 5.)
The Erie UC Service Center (Service Center) issued a determination finding Claimant was not ineligible for benefits under Section 402(b) of the Law, but was ineligible under Section 401(d)(1) of the Law beginning with the waiting week ending January 11, 2014. (Notice of Determination, R. Item 5.) The Service Center determined that although Claimant had a necessitous and compelling reason to leave her employment due to health reasons, her medical restrictions were so great she was unable to accept any type of work. (Notice of Determination.) As such, the Service Center ruled that, because "the disqualifying Section takes precedence over the eligible Section," Claimant was ineligible for benefits under the Law. (Notice of Determination.) Claimant appealed the Service Center's determination. (Claimant's Petition for Appeal from Determination, R. Item 6.)
43 P.S. § 802(b). Section 402(b) of the Law provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving her employment without cause of a necessitous and compelling nature. Id.
Thereafter, a hearing was held before a Referee on March 11, 2014, at which Claimant testified on her own behalf and Employer presented the testimony of its Human Resources Professional. Claimant testified as follows. Claimant began working for Employer on May 29, 2007 as a Social Worker Service-Manager 2. (Hr'g Tr. at 4-5, R. Item 10.) Claimant was injured at work on July 2, 2013 and, as a result of that incident, she suffered herniated and bulging discs in her back, a strain in the lumbar region, and shoulder issues. (Hr'g Tr. at 6.) Claimant underwent physical therapy for her injuries and was subsequently removed from work by her doctor on December 27, 2013. (Hr'g Tr. at 6.) Employer informed Claimant that her job description did not offer limited duty. (Hr'g Tr. at 6.) Claimant's status with Employer, as of December 27, 2013, was "[o]n medical leave." (Hr'g Tr. at 4.) Claimant's doctor provided her with medical documentation of her injuries and told her that she could work in a limited-duty capacity; however, Claimant did not have that documentation with her at the hearing. (Hr'g Tr. at 6.)
The Referee specifically asked Claimant if her doctor provided her with medical documentation describing the type of limited duty that she could perform. (Hr'g Tr. at 6.) Although Claimant responded that she was provided such medical documentation, she did not have it with her at the hearing. (Hr'g Tr. at 6.) When the Referee asked why she did not bring it with her, Claimant responded that she had mistakenly left it in her car; however, she did not ask for time to retrieve the medical documentation in order to submit it into the record. (Hr'g Tr. at 7.) Claimant neither asserted in her appeal to the Board, nor does she argue in this appeal, that the Referee should have permitted her time to retrieve the documentation.
During the hearing, the Referee asked Claimant to clarify the answers on her application for UC benefits. Specifically, the Referee asked whether Claimant was able and available to work and, if so, why she answered that she was not on the application. (Hr'g Tr. at 7.) Claimant responded that she did not know "exactly how to fill that out [the application] due [to the fact] that it was [] a medical reason." (Hr'g Tr. at 7.) Claimant testified, "I'm available to work, but my job description does not offer the kind of work that I'm available to do." (Hr'g Tr. at 7.) Claimant also testified that she is available to work limited duty, such as "not doing a lot of straining as far as like long periods of walking, sitting up in unsupported chairs, lifting anything, things of that nature." (Hr'g Tr. at 7.) Claimant also testified that her doctor sent an updated letter regarding her medical status to Employer in January, which was received. (Hr'g Tr. at 8-9.)
Employer's Human Resources Professional (HR) testified as follows. At the time of the hearing the last update that Employer received regarding Claimant's ability to return to work was a doctor's note on February 19, 2014 setting forth Claimant's diagnosis, that she was unable to work beginning December 27, 2013 through April 27, 2014, that she was receiving physical therapy, and that her prognosis remained guarded. (Hr'g Tr. at 8.) Employer does not have any limited-duty positions in Claimant's job title. (Hr'g Tr. at 8.) HR corroborated Claimant's testimony regarding her position and type of work. (Hr'g Tr. at 8.)
Based on the evidence presented, the Referee made the following findings of fact:
1. The Claimant is currently employed full-time with [Employer], as a Social Worker Service-Manager 2, earning $42,170 per year. The Claimant began employment on May 29, 2007, and was last employed on December 27, 2013.(FOF ¶¶ 1-6.) The Referee concluded that although "Claimant testified that she is able and available to do limited work," she "did not present any medical documentation in support of her testimony." (Referee's Decision at 2.) The Referee further concluded that Claimant's testimony directly conflicted with her application for UC benefits, in which she "stated that she was not able to work, and not available to work." (Referee Decision at 2.) As such, the Referee determined that, for the claim weeks at issue, Claimant did not satisfy her burden under Section 401(d)(1) of the Law since she "has not established that she was able and available for suitable work beginning with [the] waiting week ending January 11, 2014." (Referee Decision at 2.) Accordingly, the Referee ruled that Claimant was ineligible for UC benefits pursuant to Section 401(d)(1) of the Law.
2. On July 2, 2013, the Claimant suffered an injury at work, which resulted in severe back issues, and injury to the Claimant's right shoulder.
3. The Claimant's doctor removed the Claimant from employment in any capacity, effective December 27, 2013.
4. On December 27, 2013, the Claimant went out on an approved medical leave of absence, citing herniated disc; unresolved Trapezoid of CL Spine; strain to her lumbar region; and right shoulder injury.
5. The Claimant's medical leave of absence is expected to end on April 27, 2014.
6. The Employer did not receive any medical documentation regarding work limitations for the Claimant, and the Employer is unable to provide limited duty.
Claimant appealed the Referee's Decision to the Board, which affirmed without making any independent findings of fact and conclusions of law. In its Order, the Board determined that although Employer did not provide limited duty for Claimant's position, Claimant "did not provide sufficient credible medical documentation or testimony during the hearing regarding her ability to work in a limited[-]duty capacity." (Board Order.) However, the Board advised that "[b]ecause availability is a week-by-week test, if [Claimant] was available to work subsequent claim weeks, [Claimant] should submit medical documentation to the service center to substantiate her claim." (Board Order.) Claimant now petitions this Court for review of the Board's Order.
Our review of the Board's Order "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." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
We will first address the Board's Motion to Quash. The Board asserts that, because Claimant's Petition for Review (Petition) does not raise a challenge to the Board's determination that Claimant was not able to work for the waiting week ending January 11, 2014, she has waived this issue. The Board contends that Claimant only challenges findings of fact 5 and 6, which are immaterial or have no bearing on Claimant's eligibility for benefits under Section 401(d)(1) of the Law. Therefore, the Board contends, this Court should quash Claimant's Petition.
Claimant did not submit a response to the Motion to Quash or a brief in opposition.
Rule 1513 of the Pennsylvania Rules of Appellate Procedure governs the content of a petition for review filed in this Court's appellate jurisdiction. Pa. R.A.P. 1513. At the time Claimant filed her Petition, Rule 1513(d) required that a petition for review contain "a general statement of the objections to the order or other determination." Pa. R.A.P. 1513(d). "The statement of objections will be deemed to include every subsidiary question fairly comprised therein." Id.
Rule 1513(d) was amended by the Supreme Court on December 2, 2014, effective in thirty days. Rule 1513(d) now requires that a petition for review contain "a general statement of the objections to the order or other determination, but the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record." Pa. R.A.P. 1513(d).
Upon review of Claimant's Petition, with Rule 1513(d) in mind, we disagree with the Board that Claimant did not preserve a challenge to the Board's determination that she was not able to work during the claim weeks at issue. Although Claimant only specifically mentions findings of fact 5 and 6 in her Petition, she begins by stating that the Board's Order "is wrong due to several incorrect findings of facts from the referee hearing." (Petition for Review at 2.) This is a sufficient challenge to all of the Board's findings. In addition, a challenge to the Board's determination that Claimant was not able to work beginning with the claim week ending January 11, 2014 is fairly comprised in the Petition. Therein, Claimant states that she informed the Referee that the date of April 27, 2014 "was an estimation and that [she] can return to work earlier[,] before the date listed, due to the fact that [she] was in physical therapy working on [her] injuries that had improved." (Petition at 3.) Accordingly, the Motion to Quash Claimant's Petition is denied.
We now turn to the merits of Claimant's appeal. Claimant argues that the Board erred in concluding that she is ineligible for UC benefits under Section 401(d)(1) of the Law. Relying on her testimony that she is able to perform some type of work within her medical restrictions, Claimant asserts that she met her burden of proving that she is attached to the labor force, and able and available for some type of work. Claimant contends that although she cannot perform her pre-injury job for Employer, she can perform plenty of jobs so long as the jobs do not involve long periods of walking, sitting up in unsupported chairs, or heavy lifting. Claimant admits that she did answer "no" on her application for UC benefits when asked if she was able and available for work; however, she asserts that she answered "no" because Employer did not offer her any work within her restrictions and, given her injury, she was not sure how to complete the form. Claimant argues that she should not be punished for her confusion, particularly when she has presented sufficient evidence to prove that she is able to work within her medical restrictions.
Claimant's eligibility for UC benefits under Section 402(b) of the Law is not in dispute. --------
Section 401(d)(1) of the Law provides, in relevant part, that "[c]ompensation shall be payable to any employe who is or becomes unemployed and who . . . [i]s able to work and available for suitable work." 43 P.S. § 801(d)(1). A claimant who files an application for UC benefits "is presumed to be able and available for work." Rohde v. Unemployment Compensation Board of Review, 28 A.3d 237, 243 (Pa. Cmwlth. 2011). "This presumption is rebuttable by evidence that a claimant's physical condition limits the type of work [s]he is available to accept or that [s]he has voluntarily placed other restrictions on the type of job [s]he is willing to accept." Id. If the presumption is rebutted, "the burden shifts to the claimant to produce evidence that [s]he is able to do some type of work and that there is a reasonable opportunity for securing such work." Id. In short, the claimant must show that he or she "is ready, willing, and able to accept some suitable work." Id.
In the present case, Claimant stated on her application for UC benefits that she was not able to work because her injuries limited her activities, she was in constant pain, and her medication affects her ability to function. (Internet Initial Claims at 5.) Thus, Claimant, herself, rebutted the presumption that she was able and available for suitable work. Therefore, even if Claimant indicated on the application that she was not able to work because she was confused, and believed that she was responding to an inquiry as to whether she could perform her pre-injury job with Employer, the burden was on her to produce sufficient evidence that she was "ready, willing and able to accept some suitable work" within her medical restrictions. Rohde, 28 A.3d at 243. The only evidence presented by Claimant to meet this burden was her own testimony; she did not present any medical documentation to support her assertions regarding her ability to perform work within her restrictions. However, the Board did not accept Claimant's testimony as credible. The Board specifically found that "[C]laimant did not provide sufficient credible medical documentation or testimony during the hearing regarding her ability to work in a limited[-]duty capacity." (Board Order (emphasis added).) The Board is the ultimate finder of fact in UC cases and questions regarding the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). Therefore, based on the Board's credibility determination, Claimant did not meet her burden under Section 401(d)(1) of the Law because Claimant's uncorroborated testimony was insufficient to establish that she was able and available for some type of work within her medical restrictions.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 8, 2015, the "Application for Relief in the Form of a Motion to Quash Claimant's Petition for Review and Brief and Dismiss her Appeal" filed by the Unemployment Compensation Board of Review is DENIED and the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge