Opinion
No. 1843 C.D. 2012
04-08-2013
Eva T. Keen, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Eva T. Keen (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied her request for a remand and found her ineligible for benefits under Section 402(e) (willful misconduct) of the Unemployment Compensation Law (Law). There is no dispute Claimant failed to timely appear for the hearing before the referee. Claimant seeks a remand hearing regarding the reason for her non-appearance so she may then create a record contesting the merits of the Board's decision. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked as a registered nurse for North Central Pennsylvania Dialysis (Employer). Employer discharged Claimant after she failed to follow proper protocol for patient care with regard to an emergency. Upon her discharge, Claimant filed for unemployment compensation benefits. The local service center awarded benefits, finding Claimant did not commit willful misconduct. Employer appealed to a referee. The referee scheduled a hearing for which Claimant did not appear. The record does not contain any testimony regarding the reasons for Claimant's failure to appear for the scheduled hearing.
Claimant asserts she arrived 20 minutes late, having misread the hearing notice. See Pet. for Review at 2. Based on her admitted lateness for the hearing, Claimant did not testify or attend.
Employer submitted testimony of four witnesses regarding Claimant's unsatisfactory work performance and the incident that led to her discharge. Employer's witnesses explained the reason for Claimant's termination from employment was her handling of a dialysis patient with a catheter. Employer's human resources representative testified that as Claimant set up the patient for treatment, the catheter was broken. Although Claimant contacted the doctor on call, she never indicated the seriousness of the patient's condition when they spoke.
Employer's human resources representative advised that the proper protocol would have been to call 911 immediately after talking to the doctor because the patient "was allowed to go home with basically nothing more than a hemostat holding the catheter closed. Had that dislodged at any time[,] she could have bled to death." Ref. Hearing, Notes of Testimony (N.T.), 5/7/12, at 3. Employer's witnesses cited this incident as the "final reason" for Claimant's discharge, noting she received a number of prior warnings regarding unsatisfactory performance. Id.
Ultimately, the referee found Claimant ineligible under Section 402(e) of the Law. The referee found Claimant "was discharged for failing to follow proper protocol for a patient's care." Ref. Dec., 5/9/12, Finding of Fact (F.F.) No. 2. The referee also found Claimant "would have been aware of [Employer's] protocol for handling life threatening emergencies with patients through her job description per RN training as well as orientation provided by [Employer]." F.F. No. 9. Claimant "had previously been warned regarding performance issues and of proper protocol." F.F. No. 8. In addition, the referee found Claimant did not notify the doctor about or properly document the patient's blood loss, which was life-threatening. F.F. Nos. 4-5, 7.
Claimant timely appealed to the Board and sought a remand hearing to address the reasons for her lateness and to present her testimony on the merits to the referee. Claimant did not give a reason for her lateness, stating only it was "human error." See Certified Record, (C.R.) Item No. 15 (Claimant's request for remand, 7/10/12). The Board concluded Claimant did not provide good cause for her absence from the hearing. Therefore, the Board denied Claimant's request for a remand for additional testimony, and affirmed the referee's denial of benefits.
Claimant now petitions for review. Claimant contends she had good cause for her lateness to the hearing, which the referee refused to hear. For the first time, to this Court, she claims she suffers from dyslexia, which caused her to see the time for the hearing as 11:45 a.m., and not 11:15 a.m. She also asserts she has "very poor eyesight," for which she wears "very expensive trifocal lenses," that caused her to misread the time for the hearing on the hearing notice. See Pet. for Review at 3. Claimant seeks a remand hearing to present her arguments to the referee.
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. Spence v. Unemployment Comp. Bd. of Review, 29 A.3d 117 (Pa. Cmwlth. 2011).
The Board contends Claimant's failure to provide disability as a reason for her misreading of the hearing notice before the Board precludes her from offering that reason now. The Board also argues Claimant failed to brief the issues of whether the findings are supported by the evidence, or the Board committed an error of law. Therefore, the Board asserts, those arguments are waived.
Initially, we consider Claimant's request for a remand hearing.
The Board has the discretion to decide whether to grant a request for a remand. See 34 Pa. Code §101.104; Volk v. Unemployment Comp. Bd. of Review, 49 A.3d 38 (Pa. Cmwlth. 2012). A party who does not attend a scheduled hearing must state the reasons for her failure to attend. Id. (holding claimant entitled to a remand hearing to submit evidence to rebut the presumption of receipt of hearing notice). When a party fails to provide any explanation for its non-appearance at a hearing, there are insufficient grounds for a remand. McNeill v. Unemployment Comp. Bd. of Review, 510 Pa. 574, 511 A.2d 167 (1986).
In this case, receipt of the hearing notice is not disputed. Claimant advised the Board in her request for remand that she was late for the hearing because she misread and misremembered the time of the hearing. Significantly, Claimant did not claim any disability caused her to misread the notice until she petitioned this Court for review. Rather, in her request for remand, she characterized her lateness as "human error" for which she "take[s] full responsibility," and apologized to the parties for requesting "more of their valued time." C.R. Item No. 15. Additionally, in her appeal from the referee's decision, Claimant stated "I through error showed up late," noting it was "inexcusable[,] it was an error." C.R. Item No. 12.
A referee may hold a hearing in the absence of one party if all parties have been notified of the date, hour and place of the hearing. 34 Pa. Code §101.51.
Because Claimant did not raise this defense before the Board when she had the opportunity, she is precluded from doing so now. Burger v. Unemployment Comp. Bd. of Review, 569 Pa. 139, 801 A.2d 487 (2002) (defenses not preserved below are waived). --------
Claimant did not provide any reason to the Board that may constitute proper cause for a remand hearing. Therefore, her request for remand did not comply with 34 Pa. Code §101.24(a). See Volk, 49 A.3d at 47 n.12 (request to reopen a hearing may be denied for not stating reasons of "proper cause" for not appearing; when reasons are facially insufficient to support proper cause, a hearing on remand is unnecessary). Misreading a hearing notice is not good cause for non-appearance at hearing. See Savage v. Unemployment Comp. Bd. of Review, 491 A.2d 947 (Pa. Cmwlth. 1985); see also Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436 (Pa. Cmwlth. 2000) (negligence is not proper cause as a matter of law).
Claimant failed to identify any proper cause in her request for remand. It is not necessary to remand a case to the Board where, as here, the reasons for "failure to appear do not rise to the level of 'proper cause' as a matter of law." Sanders v. Unemployment Comp. Bd. of Review, 524 A.2d 1031, 1033 (Pa. Cmwlth. 1987); Savage. Finding none on the record before the Board, we deny Claimant's request for a remand, and uphold the Board's denial of her request for a rehearing.
As to the merits, here, Claimant did not challenge the merits of the Board's decision regarding her alleged willful misconduct in her brief. Therefore, these issues are waived. Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998) (citing Pa. R.A.P. 2119).
Claimant also did not dispute any of the findings the Board adopted. These unchallenged findings are conclusive on appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth. 2007).
Accordingly, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 8th day of April, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY JUDGE COHN JUBELIRER
While I concur in the result of the Majority opinion, I write separately to clarify characterizations of Claimant's statements in her appeal from the Referee's decision to the Board. The Majority quotes Claimant as stating in her appeal from the Referee's decision, "'I through error showed up late,' noting it was 'inexcusable[,] it was an error.'" Keen v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1843 C.D. 2012, filed April 8, 2013), slip op. at 5 (quoting Petition for Appeal, C.R. Item No. 12 (alteration in original)). While it does not affect the outcome or rationale, I believe it is important to point out that it does not appear that Claimant meant that her lateness was inexcusable. In her Petition for Appeal from the Referee's decision, Claimant stated, "I through error showed up late + my side was not heard. This is inexcusable." (Petition for Appeal, C.R. Item No. 12.) I believe a reading of Claimant's statement in full indicates that she was, perhaps inartfully, arguing that it was inexcusable that her mistake in arriving late is preventing her side of the case from being heard.
In all other respects, I agree with the learned Majority opinion.
/s/ _________
RENÉE COHN JUBELIRER, Judge