A.W. Wagner v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Aaron W. Wagner, :
Petitioner :
:
v. : No. 1258 C.D. 2016
: SUBMITTED: November 10, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE HEARTHWAY FILED: January 4, 2017
Aaron W. Wagner (Claimant) petitions pro se for review of the July 1,
2016, decision of the Unemployment Compensation Board of Review (Board),
which affirmed the referee’s decision finding Claimant ineligible for benefits under
section 402(b) of the Unemployment Compensation Law (Law)1 because Claimant
voluntarily terminated his employment without necessitous and compelling cause.
We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
Claimant was employed as a part-time staff dentist for Towanda
Memorial Hospital (Hospital) from April 1, 2013, until February 1, 2014, when the
Hospital stopped offering dental services and Bradford County Dental Inc.
(Employer) was created. Claimant then worked as a part-time staff dentist for
Employer from February 1, 2014, until March 17, 2016, for an average of 19.5
hours per week. During the period that Claimant worked for the Hospital, the
Hospital covered Claimant’s malpractice insurance premium at 100% of the cost.
During Claimant’s term of employment with Employer, Employer informed
Claimant that it would only reimburse Claimant for a portion of his malpractice
insurance premium. Claimant agreed, and continued to work for Employer
through 2014 and 2015. (Findings of Fact (F.F.) Nos. 1-4.)
Claimant’s malpractice insurance was due to be renewed effective
April 9, 2016, through April 9, 2017, and Employer informed Claimant that it
would reimburse him $1,300 for his malpractice insurance premium. Claimant
requested that Employer increase his reimbursement for his malpractice insurance
premium. Claimant also requested that Employer pay for Claimant’s Drug
Enforcement Agency (DEA) license, which allows him to prescribe narcotics. The
license fee was $731 for a three-year renewal. Employer does not prescribe
narcotics to its patients; instead, it refers patients to their primary care physicians
for narcotic prescriptions. (F.F. Nos. 5-7.)
Claimant and Employer entered into negotiations concerning
reimbursement for the malpractice insurance premium and DEA license renewal
fee. Employer offered to reimburse Claimant $1,300 for his malpractice insurance
2
premium and to pay 75% of his DEA license renewal fee, pro-rated over a three-
year period. Claimant initially agreed to accept the offer, but he subsequently
informed Employer that the offer was unacceptable. On March 17, 2016, Claimant
resigned his employment. Employer had continuing work available to Claimant
had Claimant not resigned. (F.F. Nos. 8-12.)
Claimant applied to the local service center for unemployment
compensation benefits, and the local service center found Claimant eligible for
benefits. Employer appealed, and a referee held a hearing. Based on the evidence
presented, the referee found that Claimant resigned due to his dissatisfaction with
Employer’s offer of reimbursement for his malpractice insurance premium and
DEA license. (F.F. No. 11.) The referee noted that although Employer would not
reimburse Claimant 100% of his malpractice insurance premium and DEA license
fee, Claimant had worked for Employer under the same terms and conditions for a
period of over two years. Accordingly, the referee concluded that Claimant
voluntarily terminated his employment without cause of a necessitous and
compelling reason, and consequently, denied Claimant benefits.
Claimant then appealed to the Board, and the Board affirmed the
referee’s decision. In doing so, the Board adopted the referee’s findings of facts
and conclusions of law. Additionally, the Board expressly found that, although
Claimant may have had other dissatisfactions with Employer, Claimant quit his
employment because of his dispute with Employer over reimbursement for his
malpractice insurance and DEA license fee. The Board noted that Claimant
3
worked for Employer for over a year under the terms and conditions that existed
when the practice became independent. (Board Decision.)
Claimant now petitions this Court for review of the Board’s decision 2,
arguing that he had necessitous and compelling reasons to leave his employment
because the non-dentist office manager was dictating policies and constraints that
impacted his ability to provide proper and ethical care. In particular, Claimant
argues that: (i) he was pressured to use unapproved filling material; (ii) he had to
provide his own dental materials; (iii) he was not allotted the appropriate time in
his schedule for procedures; and (iv) he should not be pressured to send patients to
the emergency room for pain, and therefore, a DEA license is a necessary expense.
Claimant points out that he cannot pay a pro-rated fee for his DEA license because
it must be paid in full prior to the expiration of his current license. Claimant
argues that the Board did not fully appreciate his concerns and that the Board erred
because it merely noted his “other dissatisfactions” but did not address them.
We disagree that Board erred and that it did not address Claimant’s
other concerns. The Board expressly noted that Claimant had “other
dissatisfactions” with the job. Merely because the Board did not detail them does
not mean they were ignored. Rather, the Board acknowledged them, but rejected
them as being the reasons why Claimant terminated his employment. Instead, the
Board found that Claimant terminated his employment because of his dispute with
2
Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, and whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. § 704.
4
Employer over reimbursement for his malpractice insurance and DEA license fee.
Claimant’s allegation of error is nothing more than Claimant’s attempt to argue his
preferred version of the “facts.” However, the Board is the arbiter of credibility
and is free to accept or reject the testimony of any witness in whole or in part.
McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa.
Cmwlth. 2003). Even if there is contrary evidence in the record, where, as here,
the Board’s findings are supported by substantial evidence, they are conclusive on
appeal.3 Morgan v. Unemployment Compensation Board of Review, 108 A.3d 181(Pa. Cmwlth. 2015). Accordingly, we are limited to determining whether
Claimant’s dispute with Employer over reimbursement for his malpractice
insurance premium and for his DEA license fee constituted necessitous and
compelling cause for Claimant to terminate his employment.
Whether a claimant had necessitous and compelling cause to
terminate his employment is a question of law fully reviewable by this Court. Id.The claimant has the burden to establish that his reasons for quitting were of a
necessitous and compelling nature. Id. An employee who claims to have quit his
employment for a necessitous and compelling reason must prove that (1)
3
The record includes substantial evidence that Claimant quit because of this dispute. In
his answers on the claimant questionnaire, Claimant’s reasons for quitting included a
disagreement over payment of his malpractice premium. (See Certified Record (C.R.) Item No.
3, Exhibits 4, 5.) Claimant testified that he disagreed with the proposed amount of
reimbursement for his insurance premium. (N.T. at 14-15.) Robin Coyle, Employer’s office
manager, testified that Claimant first raised an issue about reimbursement in late January or early
February 2016. (N.T. at 26-27.) Ms. Coyle stated Employer offered to pay $1,300 toward
Claimant’s malpractice premium and 75% of his DEA license fee on a pro-rated basis, and that
Claimant initially agreed, but later changed his mind and quit. (N.T. at 28; Exhibit E20; C.R.
Item No. 2, Exhibits 6, 7.)
5
circumstances existed which produced real and substantial pressure to terminate
employment; (2) such circumstances would compel a reasonable person to act in
the same manner; (3) the claimant acted with ordinary common sense; and (4) the
claimant made a reasonable effort to preserve the employment. Brunswick Hotel &
Conference Center, LLC v. Unemployment Compensation Board of Review, 906
A.2d 657, 660 (Pa. Cmwlth. 2006).
Nowhere in Claimant’s brief does he argue that his dissatisfaction
over reimbursement for his malpractice insurance constitutes necessitous and
compelling cause to terminate his employment. Because Claimant has failed to
raise and develop this argument, Claimant has waived this issue.4 See Pa. R.A.P.
2119(a) (stating argument shall contain a discussion of the particular point);
Commonwealth v. Feineigle, 690 A.2d 748 (Pa. Cmwlth. 1997) (stating when
issues are not properly raised and developed in briefs, when the briefs are wholly
inadequate to present specific issues for review, this court will not consider the
merits).
4
Nevertheless, had Claimant raised this argument, he could not prevail. As the Board
noted, Claimant worked for at least a year under these terms. Claimant does not argue that the
terms of reimbursement concerning his malpractice insurance were a substantial and unilateral
change in the terms of his employment. Indeed, Claimant testified that the $1,300 would have
been the same reimbursement amount as the prior year. (N.T. at 14, 16.) Moreover, we cannot
say that Employer’s offer was unreasonable. Ms. Coyle testified that Claimant insisted on
having his malpractice insurance with a certain insurer, and that that insurer’s premium was
$600-700 higher than that charged by the insurer providing the same coverage for other dentists
in the practice. (N.T. at 27.) Ms. Coyle also testified that Claimant paid the additional money to
have a full-time policy because he needed to have a policy covering in excess of 20 hours weekly
given that Claimant worked 19.5 hours (3 days) weekly for Employer and also worked one day
per week for another dentist’s office. (N.T. at 27-28.)
6
With respect to whether Claimant’s dissatisfaction over
reimbursement for his DEA license fee constitutes cause of a necessitous and
compelling reason, Claimant states that a DEA license is a necessary expense.
Claimant points out that he cannot pay a pro-rated fee for his DEA license because
it must be paid in full prior to the expiration of his current license.
Claimant does not argue that the terms of reimbursement concerning
his DEA license fee were a substantial and unilateral change in the terms of his
employment. Instead, Claimant simply is dissatisfied with Employer’s pro-rated
reimbursement. However, “mere dissatisfaction with one’s working conditions
does not constitute cause of a necessitous and compelling nature for terminating
one’s employment.” Brunswick Hotel, 906 A.2d at 660. Moreover, Employer’s
offer to reimburse Claimant 75% of his DEA license fee on a pro-rated basis was a
better offer than Claimant previously had with Employer. Claimant testified that in
the past, he paid for the fee himself, and he admits in his pleadings that until
recently, he paid for the DEA license fee. (N.T. at 18, Claimant’s Brief at 12,
Petition for Review.) Finally, we cannot say that Employer’s offer of a 75% pro-
rated reimbursement of the DEA license fee was unreasonable where Employer did
not prescribe narcotics to its patients.
7
Accordingly, for the foregoing reasons, Claimant has failed to
establish that he had necessitous and compelling cause to terminate his
employment. Therefore, we affirm the Board’s decision.
__________________________________
JULIA K. HEARTHWAY, Judge
Judge Cosgrove dissents.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Aaron W. Wagner, :
Petitioner :
:
v. : No. 1258 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 4th day of January, 2017, the order of the
Unemployment Compensation Board of Review is hereby affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge