IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Elizabeth Moorhead, Petitioner v. No. 411 C.D Unemployment Compensation Submitted July 17, 2009 Board of Review, Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED September 16, 2009 Elizabeth Moorhead (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the Unemployment Compensation Referee s (Referee) decision and order denying her benefits under Section 402(b) of the Unemployment Compensation Law (Law). 1 Claimant argues that the Board erred in concluding that she voluntarily terminated her employment without cause of a necessitous and compelling nature under Section 402(b) so as to disqualify her from receiving benefits. 802(b). 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

2 Claimant applied for unemployment compensation benefits after becoming separated from her employment with Hollywood Grill (Employer). The Allentown UC Service Center (Service Center) issued a determination finding Claimant eligible for benefits under Section 402(b) and Section 401(d)(1) of the Law, 43 P.S. 801(d)(1). Employer appealed the Service Center s determination, and an evidentiary hearing was held before the Referee. However, [a]lthough duly notified of the time, date and place of the scheduled hearing, neither the claimant nor the employer appeared for the scheduled hearing. Therefore, the Referee based his decision on the documents submitted by the... [S]ervice Center. (Referee s Decision/Order at 1.) The Referee made the following findings of fact 1. For the purposes of this appeal, the claimant was last employed as a full time employee with the Hollywood Grill from August 25, 2008 until September 2, On September 2, 2008, the claimant voluntarily quit her employment with Hollywood Grill. (Referee s Decision/Order, Findings of Fact (FOF) 1-2.) After reviewing the record documents, the Referee determined that there is no competent evidence in the record upon which [he could] conclude that the claimant voluntarily quit her employment for cause of a necessitous and compelling nature. (Referee s Decision/Order at 2.) Therefore, because the Referee found Claimant ineligible for benefits under Section 402(b), the Referee did not address whether Claimant was able and available for work under Section 401(d)(1). Claimant petitioned for appeal to the Board, arguing that she had a seizure at the work place and was hospitalized. This was due to no fault of my own. 2

3 (Petition for Appeal, December 4, 2008.) Claimant also submitted a hand-written letter with the Petition for Appeal, which explains I disagree with the decision made on 11/20/08 and the decision of the overpayment made on 11/24/08 because I had a seizure at the new job at Hollywood Grill Restaurant. This was due to no fault of my own. (Petition for Appeal, Attached Letter dated December 3, 2008.) The Board issued an order affirming the Referee s decision and order on February 3, The Board stated that, while it is undisputed that the claimant had a legitimate health issue, there is insufficient evidence upon which to determine that she had no alternative to quitting. Therefore, the board adopts and incorporates the Referee s findings and conclusions. (Board Order.) Claimant now petitions this Court for review. 2 Before this Court, Claimant argues that the Board erred in affirming the Referee s decision and order because she did not quit her employment. Claimant states I never communicated to the employer that I quit my job. I requested some time to get over the [seizure] incident. I assumed that [Employer] would return me to the schedule. I believe that I used ordinary common sense and reasonable efforts were made to preserve [my] employment. After falling in a restaurant full of people, and being taken to the hospital by ambulance, I believed that a few days off were appropriate This Court s review of the Board s decision is limited to considering whether the Board erred as a matter of law or committed any constitutional violations, and whether any necessary factual findings are supported by substantial evidence. Smith v. Unemployment Compensation Board of Review, 967 A.2d 1042, 1045 n.3 (Pa. Cmwlth. 2009). 3

4 ... Common sense would dictate that such a request was reasonable. (Claimant s Br. at 7-8.) As such, Claimant asks this Court to reverse the order of the Board. Section 402(b) states that an employee will be ineligible for unemployment benefits during weeks in which the employee s unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. 802(b). Health problems may constitute necessitous and compelling cause to leave one s employment. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982). However, in order to succeed in showing that such health problems constituted a necessitous and compelling reason, a claimant has the burden to show that she communicated the problem to her employer and was available for suitable work. Id. at , 451 A.2d at Once the employee has communicated [her] medical problem to the employer and explained [her] inability to perform the regularly assigned duties, the employer may decide to make a reasonable accommodation to the employee s needs. Id. at 131, 451 A.2d at Id. As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimicable to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. 4

5 Because neither party appeared before the Referee at the scheduled hearing on Friday, November 14, 2008, at 915 a.m., 3 the Board was obligated to decide the case based on the pertinent available records. Gasden v. Unemployment Compensation Board of Review, 479 A.2d 74, 76 (Pa. Cmwlth. 1984) (quoting 34 Pa. Code ). Contrary to Claimant s argument that she did not quit her employment, but only requested a few days off, there is evidence in the record that Claimant did, in fact, quit her employment. Claimant completed a Claimant Questionnaire, which she signed on September 15, In the Claimant Questionnaire, question No. 4 states, Did you quit your job or take a leave of absence? to which Claimant answered by checking the box labeled Quit. (Claimant Questionnaire at 1, September 15, 2008.) Question No. 5 of the Claimant Questionnaire asked Claimant to [p]lease indicate the reason you separated from your job. Claimant checked the box labeled Health Reasons. (Claimant Questionnaire at 1.) Claimant also indicated that her health problem was a seizure and that it occurred unexpectedly. (Claimant Questionnaire at 1.) Additionally, Claimant completed an Employment Separation Questionnaire, which she signed on September 15, In this document, Claimant explained that she was unemployed because she voluntarily quit due to health reasons, (seizure). (Employment Separation Questionnaire, September 15, 2008.) The record evidence also indicates that Employer believed that Claimant had quit her employment. The Employer Questionnaire completed by Employer indicates that Claimant voluntarily quit her employment for health reasons. (Employer Questionnaire at 1, September 13, 2008.) Because the evidence of record 3 Claimant does not argue that she did not receive the Notice of Hearing, or that she was otherwise unaware of the scheduled hearing. 5

6 establishes that Claimant voluntarily quit her employment for medical reasons, we must now determine whether Claimant upheld her burden under Genetin. There is no dispute that Claimant had a legitimate medical problem. Thus, the only remaining questions are whether Claimant adequately communicated her health problem to Employer prior to quitting and whether Claimant would have been available for any reasonable accommodation offered by Employer. Genetin, 499 Pa. at 131, 451 A.2d at The record indicates that Claimant did not notify Employer as to the specifics of her health problem and limitations. Claimant checked the box marked No, in the Claimant Questionnaire, when asked the question, [p]rior to your separation, did you inform the employer of your work limitations. (Claimant Questionnaire at 1.) Employer s documents in the record also indicate that Claimant never informed Employer of her health limitations. (Employer Questionnaire at 1.) Claimant noted in her Claimant Questionnaire that she is not currently working because [f]urther tests need to be done. (Claimant Questionnaire at 1.) Additionally, in Claimant s Employment Separation Questionnaire, Claimant explained that [f]urther tests will be provided when my health insurance activates. (Employment Separation Questionnaire, September 15, 2008.) There is no record that the tests were completed or that Claimant had received the results. Moreover, Claimant does not argue that she advised Employer of her limitations. Because the record does not support that Claimant informed Employer of her work limitations or that she was available to work with restrictions pursuant to Genetin, we are constrained to affirm the order of the Board. 6

7 Because Claimant is ineligible for benefits pursuant to Section 402(b) of the Law, we need not reach the issue of whether Claimant was able and available for work under Section 401(d)(1) of the Law. Fox v. Unemployment Compensation Board of Review, 522 A.2d 713, 716 (Pa. Cmwlth. 1987). 4 RENÉE COHN JUBELIRER, Judge 4 We note that Claimant also raises the argument that the Service Center erred in its Notice of Determination of Overpayment of Benefits (Determination), dated November 24, Claimant attaches a portion of the Determination to the back of her brief, and also attaches a Request for Waiver of Repayment of EUC Overpayment to the back of her Petition for Review. However, the Determination was not issued by the Service Center until after the Referee issued his decision and order finding Claimant ineligible for benefits under Section 402(b), and it is not part of the record before this Court in the present matter. This Court, acting in its appellate capacity, may only consider documents that were a part of the original record before the Referee and the Board. Based on the Petition for Appeal and attached letter that Claimant filed on December 4, 2008, it appears that Claimant was attempting to appeal the Determination to the Board; however, it is unclear whether Claimant first appealed the Determination to the Referee. Therefore, the Unemployment Compensation authorities should investigate whether Claimant followed the proper procedures to preserve her appeal rights with regard to the Determination. 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Elizabeth Moorhead, Petitioner v. No. 411 C.D Unemployment Compensation Board of Review, Respondent O R D E R NOW, September 16, 2009, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. RENÉE COHN JUBELIRER, Judge