C. Roberto v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roberto, :
Petitioner :
:
v. : No. 1478 C.D. 2022
: Submitted: November 6, 2023
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: December 20, 2023
Carl Roberto (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming the
decision of the Referee that denied Claimant benefits pursuant to Section 401(d)(1)
of the UC Law (Law)1 on the basis Claimant was not able and available for work.
Upon review, we affirm the Board’s Order.
I. BACKGROUND
Claimant was employed by Zoll Manufacturing (Employer) until January 20,
2021. (Referee’s Decision, Finding of Fact (FOF) ¶ 1.2) On February 10, 2021,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(d)(1).
2
The Board’s Order adopted and incorporated the Referee’s findings and conclusions
subject to amendment of one finding and the addition of another, as indicated below.
Claimant filed an initial application for UC benefits. (Id. ¶¶ 5-6.) On that
application, Claimant indicated he was not able and available to work due to a
physical disability. (Id. ¶ 7.) Specifically, on an “Able and Available”
questionnaire, he indicated that he was unable to work because he was “[d]isabled
until further notice due to mobility and mental restrictions” and was not available to
work because he was “[d]isabled until further notice.” (Initial Internet Claims Form,
Certified Record (C.R.) at 009.) In response to whether “any restrictions and/or
limitations” existed “with regard to the type of work [Claimant is] seeking or willing
to accept,” Claimant responded “[m]obility and mental limitations.” (Id.) In
response to questions seeking “Additional Information,” Claimant answered “N[o]”
to “[a]re you able to work?” citing his “[p]hysical disability.” (Id. at 010.) In
response to “[a]re you available for work?” he indicated “[N]o” explaining that his
“employment requires mobility and [his] treatment has been delayed due to
[COVID-19].” (Id.)
In July 2021, approximately six months after submitting his initial internet
claims form on which he indicated he was not able and available for work, Claimant
received notice that he did not qualify for UC benefits under Section 401(d)(1) of
the Law because he was “not able and/or available for work due to illness, injury or
disability.” (Id. at 025.) The notice advised that “[d]isqualification under Section
401(d)(1) . . . is a week to week test” and “[i]neligibility pertains to the specific
periods during which some existing condition or circumstance exists which causes
[Claimant] to be unable to work or unavailable to work.” (Id.) It further advised
Claimant that the “disqualification is immediately purged upon the lifting or
withdrawal of the particular condition which resulted in the disqualification.” (Id.)
2
Claimant filed a timely pro se appeal, writing “I was medically eligible after
I saw the doctor for my absences on Jan 22nd 2021. I was terminated January 21st.
I have filed my biweekly and weekly claims since then claiming that I am medically
able to work.” (Id. at 041.)
A UC Referee held a telephone hearing on November 4, 2021, at which
Claimant appeared pro se and testified as follows.3 His last day of work was
December 13, 2020, and he was on short-term disability from December 14, 2020
through February 7, 2021, during which time Claimant admits he was not able to
work. (Id. at 071.) Claimant was out of work due to two herniated discs in his back
for which he sought medical treatment. (Id.) Claimant testified: “the doctor actually
sent a letter to my Employer that said I would be off for at least three weeks . . . . the
shots I needed . . . took about a week to work . . . .” (Id.) Claimant starting filing
for UC benefits as of February 7, 2021 “[b]ecause [he] was available to work at that
point.” (Id.) He did not “know why [the internet initial claims form] would say [he]
was unavailable,” stating that, as of February 10, 2021, he was available because he
“went to the doctor . . . [,] had [his] procedure done to [his] back[,] and [] was able
to work after that.” (Id. at 072.) In closing, Claimant testified: “I was available for
work as of February 10th. February 7th, I started – I was no longer receiving my
short-term disability so I needed unemployment and I filed every week and never
received any payment.” (Id. at 073.)
In a decision dated November 7, 2021, the Referee found Claimant’s last
actual day of work was December 13, 2020, he was injured on December 14, 2020,
and he was on a leave of absence and short-term disability through February 7, 2021.
(FOF ¶¶ 2-4.) The Referee further found that when Claimant filed his initial
3
Employer did not appear at the hearing. (See Referee’s Decision at 3.)
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application for UC benefits, Claimant reported that he was “unable to walk” and
Claimant was not able or available to work due to a physical disability. (Id. ¶¶ 6-7.)
Finally, the Referee found “[C]laimant presented no medical documentation to
support his testimony that there was a change in his condition since filing his initial
application for benefits.” (Id. ¶ 8.)
The Referee explained there is a presumption that a claimant is able and
available for work, which can be rebutted with evidence of illness or disability,
among other things. (Referee’s Decision at 3-4.) A claimant then bears the burden
of demonstrating the claimant is able or available for suitable work each week. (Id.
at 4.) Here, the Referee reasoned that “[C]laimant’s mere testimony that he is
physically capable of working is contradictory to the information he provided when
he filed his initial application for benefits and unsupported by any corroborating
medical documentation.” (Id.) Accordingly, the Referee concluded Claimant had
not met his burden of proof to demonstrate he was able and available for some
suitable work. (Id.) In his order, the Referee denied benefits “effective February 7,
2021 . . . and until such time as [C]laimant provides proof, such as a release from a
physician, to the Department [of Labor and Industry (Department)] showing that he
is able to work.” (Referee’s Order.)
Claimant, still proceeding pro se, appealed the Referee’s Decision to the
Board, noting as his reason his “claim was denied due to lack of medical
documentation and conflicting dates/statements. [He] was unsure of the dates so the
determining [referee] requested a physician’s statement with the dates of treatment.
The document has been uploaded.” (C.R. at 087.)
The Board affirmed by Order dated September 15, 2022. The Board adopted
the Referee’s findings and conclusions, modifying “Finding of Fact 7 to reflect that
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[C]laimant reported to the Department on February 10, 2021[,] that he was neither
able nor available to work because he was ‘disabled until further notice.’” (Board’s
Order.) The Board also added “Finding of Fact 9 to reflect that [C]laimant is not
available for work due to a physical disability.” (Id.) The Board observed that on
appeal, Claimant “makes references which the Board cannot consider as they are not
a part of the record.” (Id.) The Board also stated that “[C]laimant offered conflicting
testimony regarding his availability for work as he was ‘disabled until further
notice.’” (Id.) Therefore, “the Board d[id] not credit[ C]laimant’s testimony that he
was available for work as of either February 7, 2021 or February 10, 2021.” (Id.) In
affirming the Referee’s Decision, the Board stated that “Disqualification under
Section 401(d)(1) of the UC Law is a week-to-week test. Therefore, if[ C]laimant
becomes able and available for work after the weeks involved in this appeal, he
should inform his local UC Service Center and, if applicable, provide a doctor’s
note.” (Id.) (emphasis omitted).
Claimant filed a timely pro se petition for review with this Court. The parties
have briefed their respective positions, so the issues are ripe for our disposition.
II. PARTIES’ ARGUMENTS
Claimant, who is now represented by counsel, argues generally that he was
able and available for suitable work and, therefore, qualified for UC benefits.
(Claimant’s Brief (Br.) at 12.) First, Claimant asserts that “[i]t is quite common for
questions regarding . . . being able and available for work to be filled out incorrectly”
because “many individuals are not aware that these questions do not refer to the job
[they] left.” (Id. at 14.) Claimant also argues that he substantiated he was able and
available to work by uploading a letter from his doctor to the portal, which Claimant
suggests confirms a lumbar injection on February 17, 2021. Claimant appends a
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“Screenshot of Portal” and a “Physician Letter Dated November 8, 2021” to his brief
as Exhibits C and D, respectively. In Claimant’s view, he did as instructed by the
Referee’s Decision in uploading the doctor’s note.
The Board focuses on the fact that it did not credit Claimant’s testimony that
he was able and available to work in February 2021. Looking to the legal
framework, the Board asserts that Claimant’s statements on his application that he
was not able to work amount to an admission that rebutted the presumption that
Claimant was able and available to work. In the Board’s view, Claimant did not
carry his burden because it did not credit Claimant’s testimony that he was available
as of February 7 or 10, 2021. The Board also urges us to reject Claimant’s
suggestion that he was mistaken when filling out the internet claim form, pointing
to Claimant’s lack of explanation for his responses on the internet claim form at the
hearing. Next, the Board counters that because the letter was not in evidence before
the Referee, the Board did not err in not considering it and this Court is likewise
precluded from considering it. Moreover, the Board argues Claimant did not obtain
or submit a letter until after the hearing before the Referee.
III. DISCUSSION
A. General Legal Principles
Our review in UC cases is limited to determining whether there is a
constitutional violation, an error of law, a failure of the Board to follow procedure,
or findings which lack the support of substantial evidence in the Board’s
adjudication. Procito v. Unemployment Comp. Bd. of Rev., 945 A.2d 261, 262 n.1
(Pa. Cmwlth. 2008). “Substantial evidence is defined as relevant evidence upon
which a reasonable mind could base a conclusion.” Stage Rd. Poultry Catchers v.
Dep’t of Lab. & Indus., Off. of Unemployment Comp., Tax Servs., 34 A.3d 876, 885
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(Pa. Cmwlth. 2011). In addition, the Board serves as factfinder, empowered to
resolve conflicts in evidence and render credibility determinations. Procito, 945
A.2d at 262 n.1.
Section 401(d)(1) of the Law provides, in relevant part, that “[c]ompensation
shall be payable to any employe who is or becomes unemployed, and who . . . [i]s
able to work and available for suitable work.” 43 P.S. § 801(d)(1). When a claimant
applies for UC benefits, a rebuttable presumption arises that they are able and
available for work. Rohde v. Unemployment Comp. Bd. of Rev., 28 A.3d 237, 243
(Pa. Cmwlth. 2011). “[E]vidence that a claimant’s physical condition limits the type
of work [the claimant] is available to accept” serves to rebut the presumption.
Molnar v. Unemployment Comp. Bd. of Rev., 397 A.2d 869, 870 (Pa. Cmwlth. 1979).
If the presumption is rebutted, a claimant must present evidence of an ability to do
some type of work and of a reasonable probability the claimant could secure such
work. Id. Availability for work under Section 401(d)(1) is a question of fact for the
Board. Craig v. Unemployment Comp. Bd. of Rev., 442 A.2d 400, 401 (Pa. Cmwlth.
1982).
B. Analysis
Turning to the first step of the inquiry, we must determine whether the
presumption that Claimant was able and available to work was rebutted. Here,
Claimant indicated on his internet initial claims form that he was unavailable due to
a disability, and when asked by the Referee why the information on the form
contradicted Claimant’s testimony, Claimant said only that he did not know why.
Based on this evidence, a reasonable mind could conclude that Claimant was not
available for work as of February 10, 2021 based on a self-reported disability. (See
FOF ¶¶ 6-8.) While we are sympathetic to Claimant’s suggestion that he was
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confused about the information the form was eliciting, we are mindful that we may
not substitute an alternative finding for that of the Board’s where the Board’s is
supported by substantial evidence. Stage Road Poultry Catchers, 34 A.3d at 885-
86. Therefore, the presumption that Claimant was able and available for work was
rebutted.
With the presumption rebutted, Claimant needed to present evidence to
affirmatively demonstrate his availability. The Board made an adverse credibility
determination based on Claimant’s inability to reconcile his answer on the initial
claims form and his testimony at the hearing. Because the Board, and not this Court,
is empowered to resolve conflicts in the evidence, Procito, 945 A.2d at 262 n.1, we
must defer to the Board’s credibility determination.
Claimant points to the doctor’s note he allegedly uploaded to the portal as
evidence. However, the Board did not err in not considering it. Whether the Board
capriciously disregarded evidence boils down to whether the Board “willfully or
deliberately ignored evidence that any reasonable person would have considered to
be important.” Barsky v. Unemployment Comp. Bd. of Rev., 261 A.3d 1112, 1117
n.5 (Pa. Cmwlth. 2021). “The Board may not consider post-hearing factual
communications in its determination, as the Board is restricted to the facts and the
law pertinent to the issues involved on the basis of evidence previously submitted .
. . .” Croft v. Unemployment Comp. Bd. of Rev., 662 A.2d 24, 28 (Pa. Cmwlth. 1995)
(emphasis in original). Moreover, we “may not consider auxiliary information
appended to a brief that is not part of the certified record on appeal . . . .” Id.We are sympathetic to the fact that Claimant could have interpreted the
Referee’s instruction to submit his documentation to the portal—likely as a matter
of establishing eligibility for future benefits—as an indication that the Referee would
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see the document, consider it, and make it part of the record.4 However, the doctor’s
note did not become part of the record before the Referee, as Claimant did not
present it at the hearing or seek to hold the record open to do so. Thus, because the
Board did not credit Claimant’s testimony that he was able and available for work,
and given the lack of other evidence of record to support an alternate finding, we are
constrained to conclude that Claimant did not meet his burden to prove he was able
and available for work.
IV. CONCLUSION
To qualify for UC benefits under Section 401(d)(1), a claimant must be able
and available for work. While a presumption arises when claimants initially apply
for UC benefits, here, that presumption was rebutted by Claimant answering on the
application that he was unavailable for work. Because the Board did not credit
Claimant’s testimony that he was available as of February 2021, and because
Claimant put forth no additional evidence of record to substantiate his availability,
the Board did not err in affirming the Referee’s denial of UC benefits. For these
reasons, we are constrained to affirm the Board’s Order affirming the denial of UC
benefits.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
4
As Section 401(d)(1) is a week-to-week test, assuming Claimant did submit the
documentation as directed, the Department should review it to determine the date Claimant became
able and available to work and approve benefits, provided Claimant is otherwise eligible.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roberto, :
Petitioner :
:
v. : No. 1478 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, December 20, 2023, the Order of the Unemployment Compensation
Board of Review, in the above-captioned matter, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge