Opinion
No. 2314 C.D. 2011
08-08-2012
Michael R. Fife, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Michael R. Fife petitions for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a referee, concluding that Claimant was financially ineligible for unemployment compensation benefits under Section 401(a) of the Unemployment Compensation Law (Law) and Section 204(b) of the Workers' Compensation Act (Act). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(a). Section 401(a) provides as follows:
Compensation shall be payable to any employe who is or becomes unemployed, and who--
(a) Has, within his base year, been paid wages for employment as required by section 404(c) of this act: 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.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 71(b). Section 204(b) provides as follows:
(b) For the exclusive purpose of determining eligibility for compensation under ... the "Unemployment Compensation Law," any employe who does not meet the monetary and credit week requirements under section 401(a) of that act 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.
The background of this case is as follows. From November 30, 2009 to May 5, 2010, Employer United Natural Foods employed Claimant as a full-time selector/loader at approximately $12 per hour. On February 4, 2010, Claimant sustained a work-related injury and received workers' compensation benefits from February 5, 2010 to June 9, 2011. After his injury, Employer provided Claimant with light-duty work within his restrictions until May 5, 2010, when Employer laid off Claimant due to a lack of work. Claimant filed an application for unemployment compensation benefits dated June 12, 2011. Thus, the base year time period for determining his financial eligibility for benefits was January 1, 2010 to December 31, 2010. The Lancaster UC Service Center, the referee and the Board determined that Claimant was financially ineligible for unemployment compensation benefits under Section 401(a) of the Law due to insufficient base year wages.
The Board adopted and incorporated the referee's findings and conclusions in their entirety. Credibility and evidentiary weight are determined by the Board, and its findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence supporting those findings. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).
Section 4(a) of the Law defines "base year" as "the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year." 43 P.S. § 753(a). A "benefit year" is "the fifty-two consecutive week period beginning with the day as of which such 'Valid Application for Benefits' is filed ...." Section 4(b) of the Law, 43 P.S. § 753(b).
Having determined that Claimant was financially ineligible under Section 401(a) of the Law, the Board considered his eligibility for benefits under Section 204(b) of the Act. Section 204(b) allows for a movable base year and "is to be used to determine eligibility for compensation for an employee who does not meet the monetary and credit week requirement under the Law due to a work-related injury compensable under the Act." Auberzinsky v. Unemployment Comp. Bd. of Review, 722 A.2d 1178, 1180 (Pa. Cmwlth. 1999). After consideration of Claimant's eligibility under Section 204(b) using the four quarters immediately prior to his February 4, 2010 work injury, January 1, 2009 to December 31, 2009, the Lancaster UC Service Center, the referee and the Board determined that Claimant was financially ineligible for benefits. In light of Claimant's collection of unemployment compensation benefits during the fourth quarter of 2009 and the use of his wages for the first two quarters of 2009 to calculate the weekly benefit amount on that prior October 18, 2009 unemployment compensation application, those wages could not be used again. Accordingly, the Board found Claimant to be ineligible for benefits under both Section 401(a) of the Law and Section 204(b) of the Act. Claimant's timely petition for review to this Court followed.
Claimant first argues that the proper alternative base year calculation should have included the last three quarters of 2009 and the first quarter of 2010. Acknowledging February 4, 2010 as the date of his work injury, Claimant nonetheless maintains that the record does not support Finding of Fact No. 6, that he received workers' compensation benefits from February 5, 2010 to June 9, 2011. He argues that those benefits did not begin until May 6, 2010, the day after Employer laid him off from work. He further alleges that, because he returned to modified-duty work after the work injury from February 4, 2010 to May 5, 2010, he did have earnings through the first quarter of 2010. Accordingly, he argues that the Board erred in using the four calendar quarters immediately preceding his work injury as the base year time period for determining his financial eligibility for benefits. We reject Claimant's argument.
There is conflicting evidence as to when workers' compensation benefits began. The notice of compensation payable reflects that payments started on May 6, 2010. Certified Record ("C.R."), Item No. 6, Exhibit 11. The Request for Alternate Base Year Financial Redetermination indicates that Claimant received workers' compensation benefits from February 5, 2010 to June 9, 2011, which are the dates reflected in Finding of Fact No. 6. C.R., Item No. 6, Exhibit 17. We conclude, however, that the date workers' compensation payments started is irrelevant. Accordingly, Finding of Fact No. 6 is not necessary to our determination. --------
Contrary to Claimant's assertion, the applicable date under Section 204(b) of the Act is not when workers' compensation benefits commenced, but when the date of injury occurred. In pertinent part, Section 204(b) provides that, for the exclusive purpose of determining eligibility under the Law, "any employe who does not meet the monetary and credit week requirements under section 401(a) of [the Law] may elect to have his base year consist of the four complete calendar quarters immediately preceding the date of the work-related injury." (Emphasis added). Under one of the cardinal rules of statutory construction, this Court may not ignore express statutory language. Sys. & Computer Tech. Corp. v. Commonwealth, 41 A.3d 961, 966 (Pa. Cmwlth. 2012); Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b). As we noted in Auberzinsky, "Section 204(b) is free from all ambiguity Auberzinsky, 722 A.2d at 1180. Accordingly, we conclude that the Board properly used the four full quarters immediately prior to Claimant's work injury for the recalculation.
In the alternative, Claimant argues that this Court should remand for a new hearing in order to afford him the opportunity to submit important wage information that was identified at the hearing but not submitted due to the referee's failure to comply with the regulation requiring referees to advise and assist pro se parties. Claimant's primary complaint is that the referee failed to advise him either to ask for a continuance or to request to have the record reopened. In pertinent part, the applicable regulation provides that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." 34 Pa. Code § 101.21(a). Claimant emphasizes that this Court has interpreted that provision as placing an affirmative duty on referees to assist pro se parties to elicit facts that are probative for their cases. Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982). We reject Claimant's argument.
In the present case, the referee's responsibility to pro se Claimant did not extend to advising him to request a continuance or to have the record reopened in order to present documentation that was available at the time of the hearing. The record indicates that Claimant was aware that wage documentation was necessary to prove his case. The basis for his appeal from the Lancaster UC Service Center's determination was as follows:
After being off work hurt most of 2010 I sent in W. Comp. paperwork upon request by UC. for an alternate wage base. And my determination was made by using the quarters before my injury instead of alternate wage info.Certified Record ("C.R."), Item No. 8, Exhibit 2. Further, the referee's notice of hearing advised Claimant that the issue to be addressed at the hearing was "[w]hether claimant was paid the qualifying amount of wages in subject employment." C.R., Item No. 10, Exhibit R-1. It was Claimant's burden to prove financial eligibility for unemployment compensation benefits, Pagliei v. Unemployment Compensation Board of Review, 37 A.3d 24 (Pa. Cmwlth. 2012), and it was his choice to proceed pro se at his own risk in the proceedings below, Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053 (Pa. Cmwlth. 2010). Notwithstanding a referee's affirmative duty to advise and assist pro se parties, he or she is not required to assume the role of advocate. McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955 (Pa. Cmwlth. 2002). Accordingly, we decline to remand this matter.
For the above reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 8th day of August, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge