Opinion
No. 530 C.D. 2013
10-18-2013
Sarah Pitts, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Sarah Pitts (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that reversed the referee's determination and determined that Claimant was 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(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed by Barnes & Noble College Bookstore from March 2011, and her last day of work was August 3, 2012.
2. The employer has a policy requiring persons who are absent for three consecutive days or more to present notes from their doctors excusing them.
3. The claimant was absent from work from April 27, 2012, until April 30, 2012. The claimant gave the employer a signed note by a doctor from her medical office stating that she was under the doctor's care from April 27, 2012, until April 30, 2012.Board Opinion, March 8, 2013, (Opinion), Findings of Fact Nos. 1-9 at 1-2.
4. The claimant was absent from work between July 16, 2012, and July 19, 2012.
5. The claimant was absent from work between July 30, 2012, and August 2, 2012.
6. The claimant did not see a physician during these absences.
7. The claimant submitted doctor's notes purportedly excusing her between July 16, 2012, and July 19, 2012, as well as July 30, 2012, and August 2, 2012.
8. The notes that the claimant submitted were written-over versions of the April doctor's note. The written-over versions were obvious copies of the April doctor's note and did not conceal the original writing.
9. After investigation, the employer discharged the claimant for submitting fraudulent medical documents.
The Board subsequently determined that the date was a typographical error and should have been March 2001, not March 2011.
The Board determined:
Here, the employer testified that the claimant was absent from work for three or more days on three different occasions, once in April 2012, and twice in July, 2012. The claimant submitted doctor's notes purportedly excusing her from work for both July incidences. After the claimant submitted the doctor's notes in July, the employer noticed that they appeared to be tampered with. After reviewing the claimant's file, the employer determined that the notes submitted by the claimant in April and July were exactly the same, thus bringing into issue the authenticity of the July notes.
The Board takes official notice that the three doctor's notes submitted by the claimant in April 2012, and July 2012, are identical and that the July notes were obviously altered. The claimant testified that she had no knowledge that the notes were altered or who may have altered them, because a friend of hers picked the notes up with permission from her doctor. Given all of the circumstances in this case the Board does not find the claimant credible that she had no knowledge of the alteration. Further, the claimant admitted that she had not physically seen her doctor since April 27, 2012.Opinion at 2-3.
Submitting altered documents, knowing them to be altered, is below the standards of behavior and employer has a right to expect of an employee. Benefits are denied under Section 402(e) of the Law.
Claimant contends that there was not substantial evidence in the record to support the Board's finding that she altered the medically excused absence notes and committed willful misconduct.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
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).
Claimant contends that the allegedly altered notes from her doctor's office should not be relied upon to provide substantial evidence to support the Board's finding that Claimant submitted written over versions of the April doctor's note because the notes were hearsay and uncorroborated.
Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c). A "statement" is defined in the Pennsylvania Rules of Evidence as "(1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion." Pa.R.E. 801(a).
An unobjected to hearsay statement will be given its probative effect and may support a finding of fact if corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976).
Claimant argues that the doctor's notes were hearsay and uncorroborated. The Board, however, asserts that the doctor's notes were not hearsay because they were not used to prove the truth of the matter asserted within them. This Court agrees with the Board. The truth of the matter asserted in the doctor's notes was that Claimant was under the care of a doctor between July 16, 2012, and July 19, 2012, and between July 30, 2012, and August 2, 2012. The Board did not use the notes to make a finding that Claimant was under a doctor's care during these dates. The Board reviewed the notes and concluded that they were clearly altered versions of the original April 2012, doctor's note. Because the notes were not offered to prove the truth of the matter asserted, the notes were not hearsay evidence.
Claimant also asserts that Barnes & Noble College Bookstore (Employer) should have produced evidence that Claimant changed the dates, created the notes herself, was not sick on the dates that she was absent, and/or the substance of the notes (that she was under a doctor's care) was untrue. Claimant ignores the Board's finding that Claimant was discharged for submitting fraudulent medical documents. Employer was not required to establish that Claimant falsified the documents herself. Claimant's action of submitting altered notes, which she knew to be altered, was below the standard of behavior that Employer had a right to expect of her and constituted willful misconduct. See Perry v. Unemployment Compensation Board of Review, 410 A.2d 398 (Pa. Cmwlth. 1980). Further, whether she was sick on the dates in question or was under a doctor's care at that time were not relevant to the Board's determination that Claimant submitted altered documents.
Claimant also argues that the Board ignored her Exhibit C-2, which was a note from her physician's office, Balmont Family Practice, signed by Thomas P. Kelly, PA-C which stated "Also of note, pt. [patient] has received work notes signed by different providers including myself and Dr. DiMonte." Note from Thomas P. Kelly, PA-C, October 16, 2012, at 1. While the note indicated that Claimant had received notes for being absent in the past, it did not indicate that the doctor's office provided notes for Claimant on the dates in question.
Further, the Board specifically did not credit Claimant's testimony that she had no knowledge of the alteration of the notes. 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). --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 18th day of October, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge