J. J. Werner Jr. v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John J. Werner Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1857 C.D. 2007 Submitted: December 21, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: January 31, 2008 John J. Werner Jr. (Claimant) appeals from the order of the Unemployment Compensation Board of Review (UCBR) that affirmed the decision of the Referee who reversed the decision of the Scranton Unemployment Compensation Service Center (Service Center) which granted Claimant benefits pursuant to the Unemployment Compensation Law (Law).1 In June 2007, Claimant filed an unemployment claim with the Service Center, which, after collecting questionnaires from Claimant and Claimant s employer, Kremp Florist (Employer), issued a notice of determination, finding: 1. The Claimant was last employed on February 13, 2007. 2. The Claimant s job title was Delivery Driver. 1 751-914. Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 3. The Claimant took a leave of absence due to health problems. 4. The Claimant s health problems were: he had to have his right leg amputated. 5. The Claimant s limitations were: he can not drive at this time, but can work from his wheel chair. 6. The Claimant informed his Employer of his work limitations. 7. The Employer did not offer alternate work to the Claimant. 8. The Claimant s ability and availability for work is affected because: he can work from his wheel chair. Notice of Determination, July 5, 2007, Findings of Fact (F.F.) Nos. 1-7. The Service Center found that Claimant was eligible for benefits because he had necessitous and compelling reasons to leave his position, and that he was able and available to return to work. Scott W. Kremp, (Kremp) the Employer s President, appealed on July 10, 2007, and stated We have not been contacted by the Claimant. John [Claimant] has not notified us that he is able to return, nor has he provided any restriction or release from his physician. Petition for Appeal, July 10, 2007. At hearing before the Referee on August 1, 2007, Claimant testified by telephone, and Kremp appeared for Employer. When asked by the Referee whether there was a point in time that Claimant s doctor released him to return to work, Claimant testified: 2 The first visit to the surgeon, April of 2007, the first follow-up on the leg, when the drainage and everything had been improved so that I could, I couldn t go out of the apartment with the drainage leaking. They were afraid of getting infection at that point with the wraps and the bandages on the leg. I was able to get up and move around. Before that I could, I couldn t go, I would say around April the 7th I probably could have returned to do something. (emphasis added). Notes of Testimony (N.T.), August 1, 2007, at 5. When asked whether he contacted Employer to inform Employer that he was available to return, Claimant stated I didn t talk to Scott [Kremp] direct but I talked with Mike Beaver in the upstairs office and it was about holiday pay issues, like that. And, you know, was I still with the company, was I going out or not going out a disabled or whatever. N.T. at 5. When asked again whether he contacted Employer to make them aware of his ability to return to work, Claimant stated I didn t talk to Scott [Kremp] direct. . . . I assumed they were aware of it because of surgery reports and other information. N.T. at 5. Kremp then asked Claimant whether the doctor or surgeon release[d] you [Claimant] from care and provide[d] some kind of work restriction? N.T. at 6. Claimant replied: No. As a matter of fact, we talked about restrictions. We had a long discussion about the possibility of driving again and if it was a go for the prosthetic device, I wouldn t be restricted with driving. I had full intentions of coming back if they were able to fit a leg on; at that point they weren t sure because the healing hadn t gone down too well. But, my concern about restrictions were if I was going to need hand controls or if I was going to 3 need a permanent walker to walk. And he assured me that if the leg went on and it worked, I would be fully able to drive again. And, I could go back to delivery but there was never a problem. We couldn t get a firm date because there was so much healing to go on, the leg was swelled up three-and-a-half inches on each side. I don t know if that answers the question. (emphasis added). N.T. at 6. The facts as found by the Referee and adopted by the UCBR are as follows: 1. The claimant was last employed with Kremp Florist as a full-time Delivery Driver at a pay rate of $6.75 per hour plus overtime. The claimant was employed from October 1998 and his last day of work was February 13, 2007. 2. The claimant experienced pain in his leg; he went to the hospital and the claimant s leg was amputated. 3. The claimant was in the hospital for a month, he recovered at his brother s house for two weeks and then went back home. 4. On April 7, 2007, the claimant s surgeon released the claimant to return to work; the claimant was able to use a wheelchair but he could not drive. 5. The claimant was in touch with the employer about his vacation pay and matters concerning disability and workers compensation; however, the claimant did not advise the employer that he was able to return to work with some restrictions. 6. The claimant voluntarily left his job. 7. The claimant is able and available for work with restrictions. 4 Referee s Decision and Order, August 3, 2007, F.F. Nos. 1-7.2 The Referee affirmed the Service Center in part and reversed in part, finding that Claimant was able and available to return to work, but ineligible for benefits because of Section 402(b), because he no longer had a necessitous and compelling reason to leave. The UCBR affirmed the Referee s decision. Before this Court, Claimant contends3 that the Referee and UCBR erred by denying benefits based on the finding that Claimant did not advise Employer of his ability to return to work. Claimant alleges that, contrary to that finding, Employer was made aware of his ability to return. In his brief, Claimant states that Employer s Worker s Compensation Nurse met with Claimant s surgeon and brother during his confirmation that he was available to return to work but no driving. Claimant s Brief at Argument. However, no evidence of record supports this contention. The record indicates that at no time did Claimant specifically alert Employer that he was available to return to work. Section 402(b) of the Law provides that [a]n employee shall be ineligible for compensation for any week -- . . .(b) [i]n which his unemployment is 2 Included in the record is a medical report that indicates that, prior to the February amputation, Claimant had undergone a previous above-the-ankle amputation. The reason for the February amputation appears to be [c]linical [h]istory/[d]iagnosis: S/P gangrene. Surgical Pathology Report, Roberta E. Smith, D.O. February 21, 2007 (Pathology Report). 3 This Court s scope of review is limited to determining whether findings of fact are supported by substantial evidence in the record as a whole, whether an error of law was committed, or whether any of the parties constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. 5 due to voluntarily leaving work without cause of a necessitous and compelling nature. . . . Section 402(b) of the Law, 43 P.S. § 802(b); Cullen v. Unemployment Compensation Board of Review, 666 A.2d 772 (Pa.Cmwlth. 1995). It is undisputed and unfortunate that Claimant left his employment due to a catastrophic health problem. Claimant also contends that his leaving was not voluntary. This Court believes that Claimant, representing himself pro se, has confused the legal distinction between leaving voluntarily and leaving voluntarily due to a cause of a necessitous and compelling reason. His original leaving, on February 13, 2007, was undoubtedly for a necessitous and compelling reason. However, after his availability to return to work, which he admitted was April 7, 2007, he was no longer eligible for benefits. Based upon the record before this Court, Claimant has failed to carry his burden of proving that he communicated to Employer that he was available to return to work. Scrutiny of the record indicates no concrete communication by Claimant to Employer of such ability. The only assertion made by Claimant to this specific end was his assumption that Employer was aware of it because of surgery reports and other information. 4 N.T. at 5. Claimant s assumption is an insufficient basis upon which to find Employer had notice of his ability to return to work. However, on the question of whether the doctor released him for work, Claimant stated no, but then proceeded to confuse the issue, making it unclear if he was, in fact, released. 4 Perhaps Claimant might have been better served to have retained legal counsel for the hearing before the Referee, if only to better elicit the necessary points which now serve to force a denial of his claims. 6 In an unemployment compensation case, questions of credibility and the resolution of conflicts in the evidence are for the fact-finder and not for the court. Simpson v. Unemployment Compensation Board of Review, 370 A.2d 432 (Pa.Cmwlth. 1977). The decision of the UCBR was made based upon facts supported by the record, which this Court will not disturb. The UCBR properly determined that Claimant was not entitled to compensation benefits pursuant to Section 402(b). Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John J. Werner Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1857 C.D. 2007 ORDER AND NOW, this 31st day of January, 2008, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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