IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Julie Zezenski, : Petitioner : : v. : No C.D : Submitted: June 22, 2012 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: August 6, 2012 Julie Zezenski (Claimant), pro se, petitions for review of the October 20, 2011, decision and order of the Unemployment Compensation Board of Review (Board), which adopted the decision of the referee denying Claimant unemployment compensation. The Board concluded that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law). 1 Because the record contains insufficient evidence to allow for appellate review, we vacate the Board s order and remand for a determination regarding the date and circumstances surrounding Claimant s voluntary quit or termination of her employment. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(b). That section provides, in relevant part, that [a]n employe shall be ineligible for compensation for any week (b) [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature....

2 Claimant was employed by Reading Hospital and Medical Center (Employer) since June She was a nurse aide and subsequently became a full-time electronic and manual cash poster, which means that Claimant s job was data entry. She maintained that employment until January 17, 2011, her last day of work, at a final rate of pay of approximately $16.00 per hour. (Aug. 18, 2011, Referee Decision, Findings of Fact (F.F.) 1.) In January 2011, Claimant requested and Employer approved a leave of absence pursuant to the Family Medical Leave Act (FMLA) due to degenerative joint disease in her cervical spine. (F.F. 2.) The leave was initially scheduled to end on March 31, (F.F. 3.) By letter dated March 15, 2011, Claimant s doctor requested an extension of the leave until April 28, (F.F. 4.) By letter dated April 18, 2011, Claimant s doctor requested another extension of the leave until May 15, (F.F. 5.) Claimant did not return to work on May 16, (F.F. 6.) The service center denied benefits under Section 402(b) of the Law. Claimant appealed and the referee held a hearing at which Claimant appeared pro se, testified, and submitted documentation to evidence her medical condition and need for a leave of absence from work. Employer did not participate in the hearing and submitted no evidence. The referee ruled that Claimant voluntarily terminated her own employment without a necessitous and compelling reason when her medical leave expired on May 15, 2011, and she failed to return to work, effectively abandoning her job. Claimant sought to explain at the hearing that she had already been discharged prior to May 15, (R. Item 10, Aug. 10, 2011, Hearing Transcript (H.T.) at 7.) Claimant also testified that for approximately five years Employer had permitted her to work out of her home office, which was ergonomically 2

3 designed to address the degenerative joint disease in her spine. (H.T. at 8-9.) In August 2010, her manager requested that Claimant cease working from home and return to the office. (Id.) After several months of working onsite, during which Claimant requested accommodations from Employer, her medical condition worsened due to the changes that Employer made to her accommodations and job responsibilities. (H.T. at 9.) Claimant s doctor recommended that she take medical leave so her condition could improve. (F.F. 2.) The referee informed Claimant, who was not represented by an attorney, that the precise date of her discharge was not relevant and that Claimant should instead focus her testimony on whether she had documentation to explain why she did not return to work after May 15, (H.T. at 7.) Claimant testified that her medical condition required her to miss work beyond May 15, 2011, and that she had documentation to prove it, but she did not have that evidence at the hearing. The referee found Claimant s testimony on that point was not credible and ruled against her, finding that she abandoned her job by failing to communicate with Employer after May 15, Claimant appealed and the Board adopted the referee s decision. 2 2 Claimant requested reconsideration before the Board, which it denied, and submitted to the Board new evidence to establish that she was on doctor-approved medical leave beyond May 15, In its brief, the Board claims that Claimant is submitting medical evidence for the first time on appeal to this Court. However, the letter from Claimant s doctor is clearly time-stamped as having been received by the Board as part of the request for reconsideration. In any event, whether we may consider Claimant s additional medical evidence does not resolve whether Claimant communicated that information, or any other information regarding her medical condition, to Employer. Nor does the additional medical evidence shed any light on the circumstances surrounding the end of Claimant s employment. 3

4 On appeal to this Court, Claimant argues she never quit or abandoned her position. 3 She explains that she did not have a job to return to in May 2011 because Employer had already terminated Claimant s employment on March 31, 2011 (when her approved-leave was originally set to expire), and never made another position available to her despite having notice of her medical condition and need for accommodations. Claimant also argues that, to the extent this is a voluntary quit case, Employer s change to her accommodations and job responsibilities aggravated her medical condition, which constituted a necessitous and compelling reason for her not returning to work. There is support in the record for Claimant s contentions, but the referee and the Board failed to make any findings accepting, rejecting, or even addressing them. The Employer s Questionnaire, submitted in response to Claimant s original claim for benefits, indicates that Employer discharged Claimant on March 31, 2011, and not at some point after May 15, (H.T. at 7; R. Item 3, Employer s Separation Information.) The Questionnaire also indicates that Employer accepted Claimant s medical condition as a necessitous and compelling reason for not returning to work: FMLA leave expired on 3/31/11 but Claimant was unable to return to work for health reasons. (Id.) The hearing transcript makes apparent that Claimant sought to explain these facts to the referee, who directed Claimant instead to focus on whether she had documentation to support her medical condition after May 15, Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 483 n.2 (Pa. Cmwlth. 2005); Comitalo v. Unemployment Compensation Board of Review, 737 A.2d 342, 344 (Pa. Cmwlth. 1999). 4

5 Whether an employee voluntarily resigned or was discharged is a question of law to be answered after we examine the facts in their totality. Pennsylvania Liquor Control Board v. Unemployment Compensation Bd. of Review, 648 A.2d 124, 127 (Pa. Cmwlth. 1994); Walker v. Unemployment Compensation Board of Review, 425 A.2d 477, 478 (Pa. Cmwlth. 1981). When an employee voluntarily quits a job for medical reasons, to receive unemployment benefits she must first inform her employer of the condition and give the employer an opportunity to offer reasonable accommodations. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 131, 451 A.2d 1353, 1356 (1982); Cullen v. Unemployment Compensation Board of Review, 666 A.2d 772, 774 (Pa. Cmwlth. 1995). Once she has communicated the medical problem to her employer, the burden shifts to the employer to offer reasonable accommodations. Genetin, 499 Pa. at 131, 451 A.2d at 1356; Cooper Industries, Inc. v. Unemployment Compensation Board of Review, 555 A.2d 969, 972 (Pa. Cmwlth. 1989). If an employer has notice of an employee s medical condition and fails to offer a reasonable accommodation, and if that condition constitutes a necessitous and compelling reason for voluntarily quitting, there is nothing more that the employee can do and we have found that the employee is eligible for benefits under Section 402(b) of the Law. Cooper Industries, 555 A.2d at 972. The record before us is incomplete and, because of the crucial information that is missing, it is impossible for us to determine whether the Board s denial of benefits was appropriate. If, as Claimant contends, Employer terminated Claimant s employment on March 31, 2011 (while she was on a medically necessary leave of absence), Claimant would have had no continuing obligation to update Employer regarding her medical condition. In those 5

6 circumstances, Claimant s claim for benefits would be evaluated under the Section 402(e) willful misconduct standard, not under the Section 402(b) voluntary quit standard. If, as Claimant contends, Employer failed to accommodate her and changed her job duties such that her medical condition was aggravated to the point where she could no longer perform her job, then Claimant, in any event, would have had a necessary and compelling reason to voluntarily resign under Section 402(b) of the Law. Unfortunately, Employer did not attend the hearing to clarify what happened; the record is vague and incomplete regarding whether, when, and why Claimant s employment ended; and the referee made no findings regarding the precise date of the termination of Claimant s employment, which fact is potentially outcome determinative, or whether Employer offered Claimant reasonable accommodations in response to her known medical problems. It appears the referee and the Board may have inferred that Claimant s employment was terminated following May 15, 2011, because of a one-page letter from Employer s benefits department informing Claimant on June 7, 2011, that she was no longer eligible to partake in Employer s life insurance plan. (F.F. 8.) However, that letter does not establish when Claimant s employment ended. Accordingly, we remand to the Board for a determination regarding the date and circumstances surrounding Claimant s discharge or voluntary departure. JAMES GARDNER COLINS, Senior Judge 6

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Julie Zezenski, : Petitioner : : v. : No C.D : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 6 th day of August, 2012, the order of the Unemployment Compensation Board of Review, dated October 20, 2011, at No. B , is VACATED and the case is REMANDED with instructions to hold an additional hearing to make findings regarding the date and circumstances surrounding the termination of Petitioner s employment at the Reading Hospital and Medical Center and to render a new adjudication from which either party may appeal. Jurisdiction relinquished. JAMES GARDNER COLINS, Senior Judge