Zurn Industries v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Zurn Industries, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 2093 C.D. 2007 Submitted: April 18, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: June 5, 2008 Zurn Industries, Inc. (Zurn) petitions for review from the order of the Unemployment Compensation Board of Review (Board) that reversed the referee s denial of benefits to James R. Wolfgang (Claimant) under Section 402(e) of the Unemployment Compensation Law (Law).1 The facts, as found by the Board, are as follows: 1. The claimant was employed as a hunter core setter from September 4, 2001 through August 1, 2007, at a final rate of pay of $11.85 per hour. 2. The claimant suffered an injury and had been limited to light duty assignments since the fall of 2005. 3. On several occasions, the employer provided the claimant with assignments that they felt were within the 1 §802(e). Act of December 5, 1936, Second Ex. Sess., P.L. (1937), as amended, 43 P.S. claimant s light duty restrictions; however, the claimant would tell his supervisor that he was not able to do the job. 4. In early June of 2007, the employer reviewed the claimant s files and found that the claimant had not provided a medical update since November of 2005. 5. On June 7, 2007, the employer issued a letter to the claimant requesting an update on his medical restrictions. 6. On July 6, 2007, the claimant provided the employer with a letter from his personal care physician. 7. The letter from the personal care physician indicated that the claimant was under the care of an urologist, and the personal care physician recommended that the urologist be contacted to determine appropriate medical restrictions for the claimant. 8. On July 10, 2007, the employer met with the claimant, at that time, the claimant was placed on an unpaid suspension until he provided an updated report of his restrictions from his physician. 9. On July 25, 2007, after not receiving any response from the claimant, the employer sent a registered letter to the claimant placing him on a five-day suspension pending discharge. 10. On July 27, 2007, the claimant provided the employer with a letter from his urologist indicating that he does have a medical problem but the letter did not provide the employer with an update on the claimant s medical restrictions. 11. The claimant was told that the letter form [sic] the doctor was not acceptable because it did not provide the employer with the medical update. 12. A meeting was then scheduled with the claimant and union representatives for August 1, 2007. 2 13. At the meeting on August 1, 2007, the claimant was discharged from employment for failure to comply with the employer s request to provide a medical update on his restrictions. Board Decision, October 31, 2007, (Decision), Findings of Fact Nos. 1-13 at 1-2. The Board determined that Claimant did not commit willful misconduct: The employer discharged the claimant for the stated reason of insubordination in that the claimant failed to provide the employer with medical documentation that was acceptable to it. That documentation does not include the claimant s work restrictions as requested by the employer. It is also clear that the claimant did not respond in a prompt manner to the employer s directive. However, the claimant did contact both of his doctors and did obtain documentation from them. The last documentation was dated July 27, 2007 from his urologist. The employer failed to show that the claimant was responsible in any way for the content of the doctor s letters. The claimant complied with the employer s directive as best he could prior to his discharge. Therefore, while the Board in no way questions the employer s right to discharge the claimant, it cannot hold that the claimant s discharge was for willful misconduct in connection with his work. Decision at 2. 3 Employer contends that the Board s conclusion that Claimant did not engage in willful misconduct was unsupported by substantial evidence and was contrary to law.2 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 1283 (1985). 2 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). 4 Here, Employer contends that it established that Claimant violated its rule which prohibited an employee from committing an insubordinate act toward any company official when he failed to provide updated medical information relative to his work-related restrictions. It is undisputed that Employer has such a policy prohibiting insubordination. It is also undisputed that Bob Phillips, Employer s director of human resources sent Claimant a letter dated June 7, 2007, in which he asked that he provide the company with an updated medical report from a physician that can verify that you have any restrictions from the alleged injury of 2005. Letter from Bob Phillips, June 7, 2007, at 1; Reproduced Record (R.R.) at 24a. Claimant testified that he called his primary care physician, Robert Rodak, D.O. (Dr. Rodak) to obtain the information and was informed that Dr. Rodak was on vacation. Dr. Rodak s nurse told Claimant that she would get back to him after Dr. Rodak returned from vacation. Notes of Testimony, September 18, 2007, at 18; R.R. at 19a.3 In a letter dated July 2, 2007, Dr. Rodak stated that Claimant continued to have pelvic pain that radiates into bilateral groins and mentioned that urologist, Jeannette M. Potts, M.D. (Dr. Potts), was treating Claimant and that Dr. Rodak did not understand the cause or the objectives of treatment for his pelvic pain. Letter from Robert Rodak, D.O., July 2, 2007, at 1; R.R. at 26a. In a letter dated July 6, 2007, Phillips wrote Dr. Rodak and requested an update of the restrictions or limitations placed upon Claimant. On July 25, 2007, Employer placed Claimant on a five day suspension pending discharge for insubordination because he failed to obtain an updated medical report which detailed his limitations. On July 26, 2007, 3 The Board did not make a specific finding regarding this testimony. 5 Dr. Potts informed Employer that Claimant could work but was not ready for unrestricted activity. Dr. Potts did not specify the limitations placed on Claimant. At the meeting with Employer and Claimant s union representatives on August 1, 2007, Claimant informed Employer that he had an appointment scheduled with Dr. Rodak for August 2, 2007, and an appointment for a functional capacity evaluation with Dr. Potts scheduled for September 11, 2007.4 In Bogan v. Unemployment Compensation Board of Review, 447 A.2d 708 (Pa. Cmwlth. 1982), this Court addressed a similar controversy. Paul J. Bogan (Bogan) had been discharged from his employment with PPG Industries (PPG) by letter dated June 2, 1980, because he failed to provide documentation from a doctor stating the medical necessity for his absence from work since April 23, 1980, and for excessive absenteeism. The Unemployment Compensation Board of Review found that on May 16, 1980, Bogan had presented a letter to PPG from his physician who indicated that Bogan had been examined on April 1, and April 23, 1980, for recurrent back pain. On May 20, 1980, PPG requested that Bogan provide a new certification from the physician since the earlier letter did not provide any information that addressed Bogan s absence from work. Bogan contacted the doctor, but did not receive a new certification. PPG also attempted to obtain a statement from the doctor to no avail. By letter dated August 18, 1980, Bogan s doctor informed PPG that Bogan missed work from April 23, 1980, until June 1980, because of spinal degeneration. The Unemployment Compensation 4 On August 2, 2007, after Claimant was discharged from employment, Dr. Rodak provided Employer with restrictions for Claimant of not pushing, pulling, or lifting more than ten pounds. 6 Board of Review found Bogan ineligible for benefits as a result of his willful misconduct. Bogan, 447 A.2d at 708. Bogan petitioned for review with this Court which reversed: Mr. Bogan was requested on May 12, 1980 by his employer to submit with reference to his period of absence beginning on April 23, 1980, a statement from a doctor which documents your illness and treatment in order to return to work. Such a statement was subsequently submitted by Mr. Bogan. By letter dated May 20, 1980, Evelyn N. Doxey of PPG s Personnel Department requested additional documentation on account of her dissatisfaction with the specificity of the doctor s previous submission. Thereafter, both Mr. Bogan and Ms. Doxey contacted Dr. Worrall and were told that a more detailed document would be forthcoming. As we have indicated, Mr. Bogan was discharged less than two weeks later and the physician s second attempt to satisfy PPG was delayed several months. Under these circumstances we cannot say that Mr. Bogan s absences were unjustified or that his conduct with regard to PPG s directive to submit medical documentation of his absence was willful misconduct within the meaning of the Unemployment Compensation Law. Bogan, 447 A.2d at 710. Similarly, in Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 397 A.2d 42 (Pa. Cmwlth. 1979), this Court reversed the Board s determination that Robert K. Phelps, Jr. (Phelps) was ineligible for benefits on the basis that Phelps verbally abused and threatened his supervisor with bodily harm, and threatened to sue his supervisor based on notes he had taken in a 7 notebook. However, of relevance to the present controversy, Phelps missed a week of work due to a rapid heartbeat and was directed to present a certificate from his treating doctor. Houff Transfer, Inc., Phelps s employer, rejected the certificate because it did not contain the requisite medical information necessary to clear Phelps to return to work. Phelps attempted to obtain a revised certificate, but the doctor refused. Phelps resubmitted the same certificate which was rejected. This rejection led to the argument which eventually resulted in Phelps s dismissal. Houff, 397 A.2d at 43-44. This Court noted We cannot say claimant s [Phelps] failure to bring in the proper medical certificate was willful misconduct, as the doctor s refusal to alter it provided good cause for claimant s [Phelps] noncompliance with his supervisor s request. Houff, 397 A.2d at 44 n.3. The case upon which Employer relies, Davis v. Unemployment Compensation Board of Review, 420 A.2d 798 (Pa. Cmwlth. 1980), is inapposite. In Davis, Philip Davis (Davis) had blacked out while driving a school bus and was involved in an accident. Davis was suspended as a result of the accident. Davis submitted a letter from his doctor. Ashbourne Transportation, Inc., his employer, requested a new report because the letter did not indicate the reason for the blackout. Davis was discharged when he didn t get a new report. Unlike Claimant here, there is no indication that Davis attempted to obtain the report. The Board determined he was ineligible for benefits due to willful misconduct. This Court affirmed. Here, as in Bogan and Houff, Claimant attempted to get the information Employer requested, but neither of his physicians provided acceptable 8 information, at least not within the time demanded by Employer. Also, similar to Bogan, Employer was also unsuccessful in its attempt to have Claimant s physicians specify any work restrictions. Claimant attempted to fulfill the directives of Employer but had no control over his physicians. This Court must agree with the Board that Claimant did not commit willful misconduct. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Zurn Industries, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 2093 C.D. 2007 ORDER AND NOW, this 5th day of June, 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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