Opinion
No. 2030 C.D. 2014
06-11-2015
Geraldine M. Watkins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Geraldine Watkins (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her application for unemployment compensation benefits and assessing a fault overpayment and penalty weeks. In doing so, the Board affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(a) of the Unemployment Compensation Law (Law) because she failed to accept her employer's offer of suitable work without good cause. The Board modified the Referee's decision with respect to the claim weeks at issue and the classification of Claimant's overpayment, finding that she was at fault and subject to penalties. Finding no error by the Board, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(a). Section 402(a) states, in relevant part, that an employee is ineligible for compensation for any week
[i]n which his unemployment is due to failure, without good cause, ... to accept suitable work when offered to him by ... any employer, irrespective of whether or not such work is in "employment" as defined in this act: Provided, That such employer notifies the employment office of such offer within seven (7) days after the making thereof[.]43 P.S. §802(a).
Claimant was employed by Home Health Specialists (Employer) as a per diem Licensed Practical Nurse (LPN). Claimant worked approximately 32 hours per week at a rate of $25 per hour. Claimant last worked for Employer on September 26, 2013, when Employer removed her from the case she was working on. Claimant applied for and began receiving unemployment compensation benefits effective September 29, 2013. On April 4, 2014, the UC Service Center issued a Notice of Determination finding that Claimant had refused suitable work without good cause and was therefore ineligible for benefits for the weeks ending October 12, 2013, through March 22, 2014. The UC Service Center also assessed a $9093 fault overpayment and imposed 23 penalty weeks. Claimant appealed and the Referee held a telephonic hearing on May 7, 2014.
Claimant was on vacation in Nevada at the time of the hearing.
Elizabeth Raiburn, Employer's Director, confirmed that Claimant's last day of work was September 26, 2013. Raiburn informed Claimant on September 30, 2013, that the family Claimant was working for had requested that Claimant be removed from the position. During that same conversation, Raiburn offered Claimant three other cases at the same wage of $25 per hour. Claimant declined all three offers. Raiburn testified that Claimant turned down subsequent offers due to lack of childcare or to attend medical appointments for her husband, who had been diagnosed with stage four cancer.
One case, in Newtown Square, involved 24 hours per week. The second case, in Philadelphia, was also for 24 hours per week. The third case, in Philadelphia, required 10 hours every Sunday and 10 hours every other Saturday.
Tiffany Shaner, Employer's Lead Staffing Coordinator, testified that she offered Claimant two cases. The first case, which Shaner offered to Claimant in January 2014, was in Bensalem and would have required Claimant to work approximately 40 hours a week at her standard rate of $25 per hour. Shaner recalled that Claimant declined that offer because she could not arrange for childcare. Shaner offered the second case to Claimant on February 1, 2014. The patient, A. McCue, was located in Philadelphia and would have required Claimant's assistance for either 36 or 24 hours per week, depending upon whether Claimant worked three 12-hour shifts during the day or three eight-hour overnight shifts. The rate of pay for the McCue case was $25 per hour. Shaner testified that Claimant "was not interested" in taking the McCue case. Notes of Testimony, May 7, 2014, at 18 (N.T. ___).
Claimant testified that after she was removed from her case on September 26, 2013, Employer offered her replacement cases in October 2013; she did not recall speaking to anyone on September 30, 2013. Claimant testified that it was not her fault that none of the cases offered to her in October resulted in employment. According to Claimant, whenever she returned Employer's calls about a potential case, the position was already filled or had become unavailable. In response to questions by the Referee, Claimant denied informing Employer that she was unable to take cases due to lack of childcare, issues related to her husband's illness, or her search for new employment.
Claimant testified on direct examination that Employer never offered her a case in February 2014. On cross-examination, Claimant stated that she was in fact offered the McCue case on February 1, 2014. Claimant testified that she had an orientation with the McCue family but did not feel comfortable taking the case because she felt the patient's mother was withholding information necessary for Claimant to adequately and safely care for the patient.
The Referee credited the Employer's testimony and found that Claimant turned down five different work assignments. The Referee found that Employer did not submit evidence that it had reported Claimant's first four refusals within seven days to the Department of Labor and Industry, as required by Section 402(a) of the Law, 43 P.S. §802(a). The Referee found that Employer did properly notify the Department of Claimant's refusal to accept the McCue case offered to her on February 1, 2014. Based on the foregoing findings, the Referee held that Employer failed to establish Claimant's ineligibility under Section 402(a) of the Law for claim weeks prior to the week ending February 1, 2014. The Referee held that Claimant received an overpayment of $3,310 for the weeks ending February 1, 2014, through March 15, 2014, which was recoupable under Section 804(b) of the Law. Finally, the Referee held that there was insufficient evidence that Claimant intentionally withheld information or provided false information to the Department to warrant the imposition of penalty weeks under Section 801(b) of the Law.
See n.1, supra.
Section 804(b) states in relevant part:
Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year.43 P.S. §874(b)(1).
Section 801(b) states:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment: Provided, That no additional weeks of disqualification shall be imposed under this section if prosecution proceedings have been instituted against the claimant because of such misrepresentation or non-disclosure. The departmental determination imposing penalty weeks under the provisions of this subsection shall be subject to appeal in the manner provided in this act for appeals from determinations of compensation. The penalty weeks herein provided for shall be imposed against any weeks with respect to which the claimant would otherwise be eligible for compensation, under the provisions of this act, which begin within the four year period following the end of the benefit year with respect to which the improper payment or payments occurred.43 P.S. §871(b).
On review, the Board adopted the Referee's findings and conclusions and affirmed the Referee's decision with modifications. The Board modified the decision to deny benefits beginning with the week ending February 8, 2014, resulting in an overpayment of $2,598. The Board reclassified the overpayment as fault, finding that Claimant affirmatively misrepresented to the Department that she was unemployed due to lack of work when, in fact, Employer had extended multiple offers of work to her. The Board also imposed eight penalty weeks. Claimant now petitions for this Court's review.
Section 804(a) of the Law provides as follows for "fault" overpayments:
Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him and interest...."43 P.S. §874(a). An intentional misstatement on an application for benefits can support a finding of fault overpayment. Castello v. Unemployment Compensation Board of Review, 86 A.3d 294 (Pa. Cmwlth. 2013).
On appeal, Claimant's arguments can be summarized as follows. First, Claimant argues that the Board's adjudication of her ineligibility for benefits under Section 402(a) of the Law, 43 P.S. §802(a), beginning February 8, 2014, is not supported by substantial evidence. Second, Claimant argues that she should have had an in-person hearing, as opposed to a telephonic hearing, because she lives within 50 miles of a hearing office.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial competent evidence. Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa. Cmwlth. 1995).
An employee who refuses an offer of suitable work without good cause is ineligible for unemployment compensation benefits under Section 402(a) of the Law, which states:
[A]n employe shall be ineligible for compensation for any week...[i]n which his unemployment is due to failure, without good cause...to accept suitable work when offered to him by the employment officer or by any employer, irrespective of
whether or not such work is in "employment" as defined in this act: Provided, That such employer notifies the employment office of such offer within seven (7) days after the making thereof.43 P.S. §802(a). It must first be determined whether the work offered to the employee is "suitable" under Section 4(t) of the Law, 43 P.S. §753(t). If the proffered work is "suitable," it must then be determined whether the employee had good cause for failing to accept the work. "Good cause," while not defined in the Law, has been equated with "reason" and "good faith," which includes "positive conduct on the part of the claimant which is consistent with a genuine desire to work and to be self-supporting." Lattanzio v. Unemployment Compensation Board of Review, 336 A.2d 595, 598 (Pa. 1975) (quoting Bentz v. Unemployment Compensation Board of Review, 155 A.2d 461, 462 (Pa. Super. 1959)). A claimant may be found ineligible for benefits if he unreasonably discourages a referral of suitable work. Ormiston v. Unemployment Compensation Board of Review, 427 A.2d 746 (Pa. Cmwlth. 1981).
"Suitable work" is defined as:
[A]ll work which the employee is capable of performing. In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience, and the distance of the available work from his residence. The department shall also consider among other factors the length of time he has been unemployed and the reasons therefor, the prospect of obtaining local work in his customary occupation, his previous earnings, the prevailing condition of the labor market generally and particularly in his usual trade or occupation, prevailing wage rates in his usual trade or occupation, and the permanency of his residence. However, notwithstanding any other provisions of this subsection no work shall be deemed suitable in which (1) the position offered is vacant, due directly to a strike, lockout or other labor dispute, or (2) the remuneration, hours or other conditions of the work offered are substantially less favorable to the employe than those prevailing for similar work in the locality, or (3) as a condition of being employed, the employe would be required to join a company union, or to resign from, or refrain from joining, any bona fide labor organization.43 P.S. §753(t).
In unemployment compensation cases, the Board is the ultimate fact finder and has exclusive power to resolve conflicts in the evidence and to decide witness credibility and the weight to be accorded the evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the Board; the critical inquiry is whether there is substantial evidence to support the findings actually made. Id. If so, the Board's findings are conclusive and cannot be disturbed on appeal. Id.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Morgan v. Unemployment Compensation Board of Review, 108 A.3d 181, 185 (Pa. Cmwlth. 2015). On review, this Court must examine the evidence in the light most favorable to the prevailing party, and give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
With the above principles in mind, we turn to Claimant's first issue, i.e., that the Board's holding that she was ineligible for benefits under Section 402(a) of the Law, 43 P.S. §802(a), beginning February 8, 2014, is not supported by substantial evidence. Specifically, Claimant challenges the Board's factual findings with respect to the McCue case. Claimant contends that Employer offered her the McCue case on January 13, 2014, and she attended orientation with the McCue family on that day. Contrary to the Board's findings, Claimant asserts that Employer did not offer her the McCue case or any other assignment on February 1, 2014, and did not notify the Department of her refusal of the McCue case within the seven-day deadline in Section 402(a) of the Law, 43 P.S. §802(a). Claimant essentially asks this Court to accept her version of the facts, which we cannot do.
The Board's findings regarding the timing of the McCue offer and Employer's notice to the Department of Claimant's refusal are supported by competent, credited evidence. Employer's Lead Staffing Coordinator, Tiffany Shaner, testified that she offered the McCue case to Claimant on February 1, 2014. N.T. 18. Claimant's claim record contained an entry dated February 3, 2014, stating "PER DOCS FROM [EMPLOYER] POSS REFUSAL OF SUITABLE WORK." Certified Record, Item No. 1, at 3. This supports the Referee's finding, adopted by the Board, that "[a]ccording to Departmental records, the Department received documentation from the employer on February 3, 2014 indicating the claimant possibly refused suitable work from [Employer]." Referee Decision at 2, Finding of Fact No. 11.
Claimant does not argue that the McCue case was not "suitable work" under Section 4(t) of the Law, 43 P.S. §753(t). See n.9, supra. Even if Claimant had raised this issue, we discern no error in the Board's holding that, in light of Claimant's 34 years of experience as an LPN, her unsupported allegation that she declined the case because the patient's mother withheld information was insufficient to satisfy Claimant's burden of proving unsuitability. --------
In her second issue, Claimant argues she was denied her right to an in-person hearing before the Referee. Neither Claimant nor her counsel objected to the hearing being held telephonically when the hearing commenced. Claimant also did not raise this issue in her appeal to the Board. Because issues not raised at the earliest time possible during a proceeding are waived, Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010), we will not address this issue.
For all of the foregoing reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 11th day of June, 2015, the order of the Unemployment Compensation Board of Review dated September 10, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge