Opinion
No. 1605 C.D. 2012
03-13-2013
The Philadelphia Parking Authority, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The Philadelphia Parking Authority (Employer) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Referee's determination that Michael S. Kelly (Claimant) was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The Board made the following relevant findings of fact:
1. The claimant worked for the Philadelphia Parking Authority as a tow truck operator from May 22, 2011 through October 28, 2011.
2. The employer has a sick leave policy.
3. The claimant was or should have been aware of the policy.Board's Decision, July 24, 2012 (Decision), Findings of Fact Nos. 1-8 at 1; Reproduced Record (R.R.) at 19a.
4. Under the terms of the policy employees are required to submit medical documentation to certify their sick leave if they use two or more consecutive sick leave days.
5. The claimant was or should have been aware of the policy.
6. The claimant provided a doctor's note to the employer for September 9 through September 16, 2011.
7. The claimant submitted another doctor's note with corrected dates of October 9 through October 16, 2011, at his grievance hearing.
8. The claimant was discharged because even though he supplied a doctor's note, he was not seen by the doctor.
The Board resolved the conflicts in testimony in favor of the Claimant and determined "[t]he employer's policy provided that the claimant had to supply a doctor's note, not that the claimant was seen by the doctor. The claimant did provide a doctor's note. The claimant complied with the employer's policy." Board's Decision at 2; R.R. at 20a.
On appeal, Employer contends that the Board erred when it determined that Claimant's actions did not rise to the level of willful misconduct.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Employer argues that Claimant violated its Sick Leave Policy because Claimant's medical certificate did not contain the requisite information-the date, time, and place Claimant was treated. Additionally, Employer argues that the medical certificate provided by Claimant contained false information because Claimant was never examined by Dr. Thomas Lubin (Dr. Lubin).
Employer's sick leave policy states in relevant part:
A medical certificate is required for all absences of more than two (2) consecutive work days. An employee who must be absent on unpaid sick leave... must present a medical certificate for each absence.... Medical certificates required under this section must be submitted upon the employee's return to work but in no case more than three (3) days after the employee's return to work.
a. A medical certificate must contain the following information:
1) the date, time and place the employee was treated;
2) the date(s) the employee was unable to work due to illness or injury;
3) if appropriate the date of expected return to work; and,
4) the doctor's name, address, telephone number, signature and date.
Claimant submitted a note from Einstein Neighborhood Healthcare which indicated the dates during which Claimant was under the care of Dr. Lubin and the date that he was able to return to work, and the name, address and telephone number of Dr. Lubin. The note did not contain a signature. Instead, it was stamped with Dr. Lubin's name.
A review of Employer's policy indicates that the note substantially complies with the policy. The note indicates when Claimant was under Dr. Lubin's care. Those dates coincide with the time Claimant missed work. The note indicates the doctor's name, address, and telephone number. Although the note was not signed and dated, Employer does not dispute that the note came from Claimant's doctor's office.
Employer also contends that Claimant submitted false documentation because Claimant never "treated" with Dr. Lubin because Claimant never went to the doctor's office.
"Treatment" is not defined in the policy. There is nothing in the record that indicates "treatment" required an employee to physically go to a doctor's office and be seen by a doctor. Claimant credibly testified that he contacted Dr. Lubin's office when he was sick and scheduled an appointment, but felt better at the time of the appointment and canceled.
In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review , 474 Pa. 351, 378 A.2d 829 (1977). --------
Employer failed to present any persuasive evidence that Claimant knowingly violated Employer's sick leave policy. This Court agrees with the Board that Claimant's note substantially complied with Employer's policy.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 13th day of March, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
Employer's Sick Leave Policy at 20-21; R.R. at 4a.