Opinion
No. 617 C.D. 2011
04-25-2012
Penny Erney, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when the opinion writer completed her term as President Judge.
Petitioner, Penny Erney, appeals from the decision of the Unemployment Compensation Board of Review, which denied her unemployment compensation benefits pursuant to Section 401(d)(1) of the Unemployment Compensation Law (Law), on the basis that she was not able and available for work.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801 (d)(1).
Petitioner was employed 21 hours a week at Advantage Resource Group (Employer) as a service coordinator from January 27, 2009 through June 18, 2010. Petitioner was the sole employee physically present at Employer's workplace. In January 2010, Petitioner's ex-husband (Mr. Erney), who lived with her, became seriously ill and suffered an esophageal tear. Mr. Erney remained hospitalized for four months and then was sent home to live with Petitioner. Petitioner is her ex-husband's primary caretaker and has been trained to administer his medications, clean and drain fluid bags, record temperature and administer tube feedings through the stomach. Mr. Erney's condition is extremely volatile and often requires that Petitioner miss work or leave work with little or no notice. Petitioner resigned her position because she could not comply with Employer's rule requiring her to give 24 hour advanced notice if she was going to miss work or leave work early. Following her resignation, Employer offered Petitioner employment on Fridays only, with the caveat that she was not allowed to call out. Petitioner declined the offer.
Petitioner applied for unemployment compensation benefits, which were granted by the job center. Employer appealed and a hearing was held on November 10, 2010 before the referee. Petitioner testified on her own behalf and Bobbi Dixon, regional manager, testified for Employer. Petitioner testified that she worked 21 hours per week as a service coordinator and that although she is able to work and has looked for work since her separation from employer she had not found work. She also stated that her work was flexible in that Employer was willing to arrange a schedule that varied from week to week. Hearing of November 10, 2010, Notes of Testimony (N.T.) at 8. Petitioner testified that Mr. Erney required 24 hour care and that his condition changed frequently. N.T. at 7 - 8. Petitioner turned down Employer's offer of employment on Fridays because she could not guarantee that a medical emergency would not prevent her from missing work and Employer required a 100% guarantee that she would be available to work Fridays. Petitioner testified that she believed that she could work evenings or daytime at a store where other employees could cover if she had to leave without notice. Id. at 10. She also testified that she looked into an assisted care facility but determined it was not time for that yet based on a hospital care manager's advice. Id. at 11-12. Petitioner testified that she inquired about leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2602 - 2654. Id. at 16. Dixon testified that Petitioner did not ask for leave under the FMLA or file an application for leave under the FMLA. Id. at 13, 18.
The referee affirmed the grant of benefits holding that Petitioner terminated her employment for a necessitous and compelling reason pursuant to Section 401(2)(b) of the Law, 43 P.S. § 802 (b). Employer appealed to the Board which reversed the referee's decision because Petitioner was not able and available to work pursuant to Section 401(d)(1). Petitioner filed a request for reconsideration which the Board denied. This appeal followed.
Petitioner asserts that the Board's findings of fact are not supported by substantial evidence. Petitioner also argues that the Board committed an error by concluding that she was not able and available for suitable work. Finally, Petitioner suggests that because the transcript is riddled with gaps in important testimony, this Court should remand the case to the Board to take additional evidence in order to complete the record.
This argument is not properly before the court as Petitioner failed to raise it in her petition for review. Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010) (issues not raised in the petition for review before this court but raised in the petitioner's brief are waived.). --------
Petitioner contends that Board's Findings of Fact Nos. 12, 13, 14 and 16 are not supported by substantial evidence. The Board's findings of fact are conclusive on appeal as long as the record taken as a whole contains substantial evidence supporting those findings. Penflex, Inc. v. Bryson, 506 Pa. 274, 485 A.2d 359 (1984). Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. The Board is the ultimate fact-finder and is empowered to make credibility determinations. Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064 (Pa. Cmwlth. 2009). In making such determinations, the Board is free to reject the testimony of any witness, even uncontradicted testimony. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000 (Pa. Cmwlth. 2010).
First, Petitioner asserts that Finding of Fact No. 12 which states that "the claimant's employment was very flexible and the claimant only worked 21 hours a week" is not supported by substantial evidence. Petitioner's own testimony reflects that her position was flexible in the sense that Employer was willing to vary scheduled working hours from week to week as needed. Thus, substantial evidence in the record supports Finding of Fact No. 12.
Next, Petitioner argues that Finding of Fact No. 13 which states that "the claimant stated in response to the suggestion that she put her ex-spouse in a nursing home that it wasn't time yet" is also not supported by substantial evidence. The referee questioned "Did you investigate assisted care facilities?" Petitioner replied, "It wasn't time yet." N.T. at 11. Petitioner went on to explain that she did check out assisted care facilities "via case managers from the hospital" and that she "trusted the people from the hospital to organize it." Id. at 11-12. We conclude that Finding of Fact No. 13 is supported by substantial evidence.
Petitioner also contends that Finding of Fact No. 14, which states that "the claimant did not request Family Medical Leave Act leave" is not supported by substantial evidence because, she testified that she inquired about the FMLA. Employer's witness, Bobbi Dixon, testified that Petitioner never discussed FMLA benefits with her or filed an application for FMLA benefits. As noted above, the Board is ultimate finder of fact and is empowered to accept or reject testimony. The Board clearly credited Ms. Dixon's testimony over Petitioner's testimony and, accordingly, Finding of Fact No. 14 is supported by substantial evidence.
Finally, Petitioner maintains that Finding of Fact No. 16 which states that "the claimant refused to work even one day a week for the employer" is not supported by substantial evidence. Id. Petitioner testified that she turned down the offer to work on Fridays because she could not guarantee that she would have 100% availability because of the volatility of Mr. Erney's condition and because his feeding tubes and other treatments were administered on Friday. N.T. at 9. Petitioner also stated that she "wouldn't mind working one day a week." Id. Thus, the record reflects that although Petitioner turned down the offer to work on Fridays, she did state her willingness to work another day of the week. We conclude that Finding of Fact No. 16 is not supported by substantial evidence. This is of marginal significance, however, since Petitioner's testimony made clear that, although Fridays were the most difficult day for her to work, the real problem was that she could not guarantee her ability to be available for work on any given day or days because of the unpredictable nature of Mr. Erney's condition.
Petitioner argues that the Board erred in finding her ineligible for benefits under Section 401(d)(1) of the Law on the basis that she was not available to work. Section 401(d)(1) of the Law provides, in 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." An unemployed worker who registers for unemployment is presumed to be able and available for work. Id. This presumption is rebuttable by evidence of illness, refusal to work, disability or other factors indicative of a claimant not being realistically attached to the labor force. Scardina v. Unemployment Comp. Bd. of Review, 537 A.2d 388 (Pa. Cmwlth. 1988). If the presumption of availability is rebutted, the burden shifts to the claimant to produce evidence that she is able to do some type of work and that there is a reasonable opportunity for securing such work. Molnar v. Unemployment Comp. Bd. of Review, 397 A.2d 869 (Pa. Cmwlth. 1979). That work need not be full time, so long as it is substantial. The court must determine whether a claimant has imposed conditions on her employment which so limit her availability as to effectively remove her from the labor market. Harwood v. Unemployment Comp. Bd. of Review, 531 A.2d 823 (Pa. Cmwlth. 1987).
Petitioner challenges the Board's conclusion that she failed to demonstrate that she was realistically attached to the labor market. The Board concluded that "claimant stated that her ex-spouse requires 24 hour care. Therefore, the claimant is not available for work." Board Opinion at 3. However, the Board found that Mr. Erney had some outside health care during some times, but not all of the time. Board Opinion at 2, Finding of Fact No. 10. Petitioner testified that she quit her job because she could not comply with Employer's 24-hour advance notice call out policy. Petitioner also testified that she turned down the Friday only offer for the same reason. She stated that she believed that she would be able to work at night or at an office job or store where there were other employees who could cover for her. This testimony was not discredited.
We must conclude that the limitations imposed on Petitioner's ability to work are insufficient to rebut the presumption of availability under the standards considered in Molnar. Nonetheless, it was undisputed that she was able and willing to do some part time work so long as she could have the flexibility to respond to Mr. Erney's frequent medical emergencies. While this is a close question, we do not believe that her limitations removed her from the labor market. Indeed, the Board's basis for so finding appears to rest on the false premise that she was personally needed to provide the 24 hour a day care Mr. Erney required, a premise inconsistent with Finding of Fact No. 10.
Accordingly, we reverse.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 25th day of April, 2012, the order of the Unemployment Compensation Board of Review is hereby REVERSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge