IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ligonier Physical Therapy Clinic, : Petitioner : : v. : No. 2043 C.D. 2012 : Submitted: May 3, 2013 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: September 5, 2013 Petitioner Ligonier Physical Therapy Clinic (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed a Referee s (Referee) decision granting unemployment compensation benefits to Yvette A. Tobias (Claimant). For the reasons set forth below, we now affirm. Claimant filed for unemployment compensation benefits after Employer terminated her employment as a part-time office manager. The Indiana UC Service Center (Service Center) issued a determination, finding Claimant to be ineligible for compensation benefits. (Reproduced Record (R.R.) at RR-182.) Claimant appealed the Service Center s determination, and a Referee conducted an evidentiary hearing.

At the hearing before the Referee, 1 Employer offered the testimony of two witnesses. First, Dr. Roxane Peiffer, the owner and administrator, testified that on May 25, 2012, Employer terminated Claimant s employment. (R.R. at RR-87, RR-94, RR-121.) Specifically, she testified that Employer terminated Claimant for using an incorrect fax number to fax a patient s medical records to a doctor. (Id. at RR-99.) Dr. Peiffer also testified that on May 24, 2012, Employer issued a written reprimand to Claimant for yelling and pointing her fingers at her co-workers. (Id. at RR-101.) On cross-examination, Dr. Peiffer testified that Claimant, as the office manager, regularly failed to schedule a physical therapist for shifts that complied with the physical therapist s medical restrictions. (Id. at RR-104-RR-105.) As a consequence, Employer issued a written reprimand to Claimant on September 15, 2011. (Id. at RR-105.) Next, Risa Panichelle, Quality Assurance Manager, testified for Employer. Ms. Panichelle testified that sometime on April 27, 2012, she discussed with Claimant Employer s lunch policy, which Claimant had violated. (Id. at RR-116.) In particular, Ms. Panichelle testified that Claimant would leave the premises during her paid lunch break when she was required to remain in the office to answer phones. (Id.) On May 18, 2012, Employer issued a written warning to Claimant for violating the lunch policy. (Id. at RR-122.) Ms. Panichelle also testified about other work incidents involving Claimant, which merely resulted in Claimant receiving warnings. (Id. at RR-120.) Particularly, Ms. Panichelle 1 Claimant did not appear at the hearing before the Referee, and, as a result, she did not testify or present any evidence. Claimant s counsel, however, represented her at the hearing. 2

discussed the May 24, 2012, meeting with Claimant, the purpose of which was to calm [Claimant] down and [to] have [her espouse] a more business[-]like demeanor and [to have her] stop yelling when we re trying to get her to be a better employee. (Id. at RR-119.) Employer also submitted a number of documents into evidence, demonstrating Claimant s behavior at work, as well as her violation of the lunch policy. Following the hearing, the Referee issued a decision, reversing the Service Center s determination. The Referee determined Claimant to be eligible for unemployment compensation benefits. following relevant findings: 3 In so doing, the Referee made the 1. The claimant was employed as office manager, part-time, working 35 hours per week, earning $15 per hour from September 29, 2009 through May 25, 2012, the claimant s last day of work. 2. On an undetermined date in March 2011, the claimant was hired on a permanent basis as office manager. 3. Her responsibilities as office manager included supervision of the physical therapy staff which was comprised of two physical therapists and a physical therapist assistant. One of the physical therapists was the owner s daughter-in-law. 4. On an undetermined date in February 2012, the employer created a position, QA director, who became the claimant s supervisor. The QA director was the owner s daughter. 5. One of the physical therapists required accommodations during the work day. Specifically, that physical therapist could not work longer than three hours without a break. 6. The claimant was responsible to prepare the work schedules for the physical therapists. The claimant

did not consistently schedule the physical therapy staff to ensure that one of the physical therapists had a break every three hours. 7. The employer issued warnings to the claimant regarding poor attitude and work performance on September 15, 2011, and November 1, 2011 specific to the physical therapist s schedule, and April 16, 2012 faxing information to the wrong person. 8. On an undetermined date in April 2012, the QA director took over the responsibilities for scheduling the physical therapists and physical therapy assistant. 9. The employer provides a paid lunch break and prohibits employees from leaving the work site during their lunch break. 10. Several times, the claimant left the work site during her lunch break. On April 27, 2012, the QA director met with the claimant to review the lunch policy. The claimant responded to the QA director in a low tone of voice stating:... do not mess with me. I will walk out of here and go straight to the unemployment office. 11. On May 18, 2012, the employer issued a written warning to the claimant regarding compliance with this policy. 12. On May 24, 2012, the owner/administrator met with the claimant and presented her with a written reprimand regarding incidents on April 19, 2012, April 20, 2012, April 27, 2012 and May 23, 2012 between the claimant and other employees. The warning read: [d]o not raise your voice/yell at other employees. 13. On May 25, 2012, the employer learned that the claimant faxed medical records to a doctor using an incorrect fax number. 14. On May 25, 2012, the employer terminated the claimant s employment concluding that the claimant was unresponsive to direction. 4

(Certified Record (C.R.), Item No. 11, Referee s decision.) (Id. (emphasis added).) Based on the findings, the Referee reasoned: The employer terminated the claimant s employment because she faxed medical records to a doctor using an incorrect phone number. The employer posited that had the claimant followed its recommended protocol for sending a fax, she would have written the correct fax number on the fax cover sheet, thereby avoiding the error. The employer did not demonstrate that it has a protocol for sending faxes (written or otherwise). Because the employer failed to demonstrate this specific protocol, the Referee cannot conclude that the claimant deliberately violated that protocol. Errors or oversights without competent evidence of intent are insufficient to establish willful misconduct. Moreover, the Referee concluded that [w]hile the claimant may, in the eyes of the employer have been an unsatisfactory employee and the employer may have been justified in discharging the claimant, the denial of benefits cannot be predicated on such grounds. (Id.) The Referee, therefore, concluded that, because Employer failed to establish willful misconduct, Claimant was eligible for unemployment benefits. Also, citing to our decision in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), the Referee observed that with the exception of testimony from [Ms. Panichelle], [Employer s] complaints about [Claimant s] attitude, demeanor and interactions with others was based in hearsay. Employer appealed to the Board, and the Board affirmed the Referee s decision. (C.R., Item No. 14.) In affirming the Referee s decision, the Board adopted the Referee s findings of fact and conclusions of law. 5

On appeal, 2 Employer raises three issues for our review. First, Employer appears to argue that substantial evidence does not support the Board s findings of fact numbers 3 and 13. Second, Employer argues that the Board erred in concluding that Claimant s actions did not constitute willful misconduct. Finally, Employer argues that, based on our decision in Walker, the Board erred in adopting the Referee s finding that [Employer s] complaints about Claimant s attitude, demeanor, and interactions with others was based in hearsay, because the alleged unobjected-to hearsay was corroborated by other competent evidence of record. First, to the extent that Employer may be attempting to argue that substantial evidence does not exist to support the Board s findings of fact, we note that Employer, in its petition for review and brief, does not identify with specificity any findings of fact that it contends are not supported by substantial evidence. Rather, Employer takes the general position that there was sufficient evidence of record to show a willful or wanton disregard of Employer s interests, a deliberate violation of Employer s rules, or a willful disregard of the standards of behavior which Employer has a right to expect of an employee. Employer supports that position by arguing that Claimant s negative conduct in the aggregate was a result of Claimant s complete unresponsiveness to Employer s directives. Although findings of fact made by the Board that are not specifically challenged generally are conclusive upon review, Salamak v. Unemployment Compensation Board of 2 This Court s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704. 6

Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985), Employer s petition for review and brief may be interpreted as challenging whether substantial evidence exists to support findings of fact numbers 3 and 13, which, respectively, provide that [Claimant s] responsibilities as office manager included supervision of the physical therapy staff which was comprised of two physical therapists and a physical therapist assistant. One of the physical therapists was the owner s daughter-in-law, and that [o]n May 25, 2012, the employer learned that the claimant faxed medical records to a doctor using an incorrect fax number. (C.R., Item No. 11, Referee s decision.) Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board s findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board s findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board s findings. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 7

1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. 504 A.2d 989, 990 (Pa. Cmwlth. 1986). Johnson v. Unemployment Comp. Bd. of Review, As to the Board s finding of fact number 3, we agree with Employer s contention that it was unsupported by substantial evidence to the extent it relates to whether one of the physical therapists was the owner s daughter-in-law. (C.R., Item No. 11, Referee s decision.) In her testimony, Dr. Peiffer specifically recalled that she noticed a change in Claimant s work performance when we had a physical therapist who was a doctor s daughter-in-law working for us and [Claimant] didn t seem to get along with her and there was a lot of friction between the two. (R.R. at RR-95 (emphasis added).) We, therefore, conclude that substantial evidence of record does not demonstrate that the physical therapist was Dr. Peiffer s daughter-in-law. Nonetheless, the relationship of the physical therapist to Dr. Peiffer is not a necessary fact and, as a result, is not a basis to reverse the Board. We next address Employer s argument that substantial evidence does not support the Board s finding of fact number 13 that Claimant faxed the records to an incorrect fax number when Employer now contends that Claimant failed to send the records at all. We disagree. Dr. Peiffer testified in pertinent part: [Referee]:... Why don t you give me the tipping point. What happened? [Employer s attorney]: Okay [Referee]: What prompted the Employer to terminate employment? [Employer s attorney]: You ve heard the question of the Referee. What was the employee s last day of employment? 8

[Dr. Peiffer]: The last day was May 25, 2012. [Employer s attorney]: And what brought that about?.... [Dr. Peiffer]: The employee did not send the patient s medical records to the doctor and the doctor was mad, the patient was mad, the patient s wife was mad, the physical therapist was mad because she wrote the order, but the Claimant did not send it over to the doctor. [Referee]: Had this happened before? [Dr. Peiffer]: Yes, it had. [Referee]: Had it happened more than once before? [Dr. Peiffer]: Yes it had. [Referee]: Had the employee been warned about that before? [Dr. Peiffer]: Yes she had. [Claimant s attorney]: Let me place an objection to these questions because there is no evidence in the record about these other instances where records were faxed to the wrong number as far as I know. [Dr. Peiffer]: There is..... [Claimant s attorney]: Do you think [Claimant] knowingly faxed a report to a wrong fax number? [Dr. Peiffer]: She did it multiple times, so that s why [Claimant s attorney]: That wasn t my question. To your knowledge did she knowingly send a patient s record to a wrong fax number? [Dr. Peiffer]: I don t know..... [Employer s attorney]: I m going to go back to that. Was there a practice that needed to be followed with faxing [Dr. Peiffer]: Correct. [Employer s attorney]: reports? And had that practice been followed correctly, would the Claimant have made these mistakes? 9

[Dr. Peiffer]: No she would not have. [Employer s attorney]: And what is the specific step that would have made the difference? [Dr. Peiffer]: Just writing the fax number on the fax coversheet. [Employer s attorney]: And had she written the fax the correct fax number on the fax coversheet, do you believe then the fax would have been sent to the correct doctor? [Dr. Peiffer]: Yes, I believe so. (Id. at RR-99, RR-114 (emphasis added).) Based on Dr. Peiffer s testimony, we conclude that substantial evidence of record exists to support the Board s finding that claimant faxed medical records to a doctor using an incorrect fax number. (C.R., Item No. 11, Referee s decision.) Although Employer may now contend that Claimant never sent the fax in question, Employer did not develop testimony to support that position during the hearing and seemed to agree with Claimant s counsel that the records did not reach the doctor due to an incorrect fax number. We next address Employer s contention that the Board erred in concluding that the Employer failed to prove willful misconduct. 3 of the Unemployment Compensation Law (Law), 4 Section 402(e) provides, in part, that an employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. The employer bears the burden of 3 Whether or not an employee s actions constitute willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). 802(e). 4 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 10

proving that the claimant s unemployment is due to the claimant s willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term willful misconduct is not defined by statute. The courts, however, have defined willful misconduct as: (a) wanton or willful disregard for an employer s interests, (b) deliberate violation of an employer s rules, (c) disregard for standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer s interest or an employee s duties or obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer s rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Moreover, the employer must establish that the employee s actions were intentional or deliberate. Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). [A]n inadvertent violation of an employer s rule may not constitute willful misconduct. Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004). 11 [A]n employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature. Grieb, 573 Pa. at 600, 827 A.2d at 426. Once an employer, however, has met its burden to establish willful misconduct, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993) (citing Mulqueen v. Unemployment Comp. Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)).

Here, the evidence of record demonstrates that Employer terminated Claimant for sending medical records to a patient s physician using an incorrect fax number. Indeed, Dr. Peiffer testified that the tipping point occurred when Claimant did not send the patient s medical records to the doctor. (R.R. at RR-99.) Also, Dr. Peiffer claimed that had Claimant followed Employer s practice for sending faxes, Claimant would have sent the patient s medical records to the correct number. (Id. at RR-114.) As the Board found, however, Employer failed to prove the existence of a practice or policy that applies to the faxing of medical information to physicians. 5 Accordingly, we cannot conclude that Claimant violated Employer s practice or policy concerning the faxing of medical records. Lastly, Employer argues that the Board erred in ruling that [Employer s] complaints about Claimant s attitude, demeanor, and interactions with others was based in hearsay because the alleged unobjected-to hearsay was corroborated by other competent evidence of record. 6 We need not address this argument because, as our analysis above demonstrates, the work incidents and events involving Claimant that occurred prior to Claimant s sending the patient s medical records using an incorrect fax number did not result in Employer s actual 5 In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (1985). The Board also is empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review. Peak, 509 Pa. at 276-77, 501 A.2d at 1388. 6 Hearsay is 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). 12

decision to terminate Claimant s employment. Indeed, Dr. Peiffer testified before the Referee that the tipping point occurred when Claimant did not send the patient s medical records to the physician. Differently put, Employer did not terminate Claimant for her attitude or demeanor in the work place. Instead, Employer simply issued a number of warnings to Claimant. Employer issued the last warning to Claimant, asking her not to shout at her co-workers, the day before it discharged her from employment. Accordingly, we affirm the Board s decision. P. KEVIN BROBSON, Judge 13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ligonier Physical Therapy Clinic, : Petitioner : : v. : No. 2043 C.D. 2012 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 5 th day of September, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED. P. KEVIN BROBSON, Judge