Jordon v. Unemployment Compensation Board of Review

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. Unlike the majority, I believe that the Unemployment Compensation Board of Review (UCBR) failed to properly consider its own finding that Claimant’s lifelong “organic mood disorder,” which manifests itself in periods of depression, prevented Claimant from getting out of bed on the days in question. (UCBR’s Findings of Fact, Nos. 2, 11.) I believe that, properly considered, this finding leads to the inevitable conclusion that Claimant’s mental illness constitutes “good cause” for his conduct and, thus, I would reverse the UCBR’s order and grant benefits to Claimant.

The majority, relying upon Finding of Fact, No. 11, points out that: “[T]he [UCBR] found that Claimant was suffering from a ‘mood’ on the days in question.” (Majority op. at 1100.) However, the majority’s recitation of the finding is incomplete; indeed, the UCBR found that Claimant “was in a ‘mood’ and simply could not get out of bed.” (UCBR’s Finding of Fact, No. 11.) (Emphasis added.) If Claimant literally “could not get out of bed” as a result of his mental illness, then I believe that Claimant had “good cause” for his failure to go to work or report off work.¹

The UCBR, after finding that Claimant had a lifelong “organic mood disorder,” (UCBR’s Finding of Fact, No. 2), analyzes this ease as if Claimant were, at all times, a “reasonable person.” The UCBR writes:

Claimant’s actions, regardless of his disability, were inimical to [Employer’s best interests and a disregard of the standards of behavior that an employer has a right to expect of its employees.

(UCBR’s op. at 2.) (Emphasis added.) However, where, as here, the issue is whether Claimant’s mental illness constitutes “good cause” for his conduct, the UCBR cannot simply disregard the mental illness and treat Claimant like an otherwise “reasonable person” after finding that he was suffering from a mental illness on the days in question.

The majority accepts as a fact that Claimant was suffering from his mood disorder on the days in question; however, like the UCBR, the majority then concludes that Claimant’s mental illness does not constitute “good cause” for his conduct. In reaching its conclusion, the majority states: “[W]e find it less than obvious from Claimant’s testimony and from the terse physician certification that his failure [to go to work or] ... to report off work was due to a flare-up of his mood disorder.” (Majority op. at 1100.) In other words, the majority examined the evidence, rejected Claimant’s testimony concerning the effects of his mental illness, weighed the remaining evidence and made its own finding that Claimant’s mental illness did not cause his behavior on the days in question.² However, it is the province of the UCBR, not this court, to make credibility determinations, to weigh the evidence and to make findings of fact. Unemployment Compensation Board of Review v. Wright, 21 Pa.Cmwlth. 637, 347 A.2d 328 (1975).

Moreover, the majority’s finding is contrary to Finding of Fact, No. 11, which I believe is supported by substantial evidence in the record. Indeed, the physician’s certification states that Claimant’s mental illness would prevent Claimant from working for a period of three days or more. (R.R. at 4a.) In addition, Claimant testified that, on the days in question, he was suffering from a depression which prevented him from getting out of bed. (R.R. at 30a.) Certainly, a reasonable mind could conclude from this evidence, as the UCBR did here, that Claimant’s mental illness prevented him from getting out of bed on the days in question. Eck v. Unemployment Compensation Board of Review, 651 A.2d 689 (Pa.Cmwlth.1994).

The majority believes that it takes an expert to testify that Claimant’s mental illness prevented him from getting out of bed on the days in question. I cannot agree. If Claimant had sought treatment from his physician, who is aware that Claimant’s mental illness is severe enough to prevent Claimant from working for three days or more,³ and Claimant had told his doctor that he had recently suffered from the mood disorder for three days and could not get out of bed, his doctor would have had no reason to disbelieve Claimant. Thus, like the UCBR, I would accept Claimant’s testimony here; indeed, in our appellate role, we cannot alter the UCBR’s credibility determination.

Finally, the majority writes:

[Assuming that [Claimant’s] failure to report either to work or off work was due to his disorder, we conclude that the [UCBR] did not err in concluding that his behavior was a disregard of the standards an employer has a right to expect of an employee, with or without disabilities.

(Majority op. at 1100.) (Emphasis added.) However, in this statement, the majority loses sight of the issue before us. If Claimant’s conduct was due to his mood disorder, as the majority assumes arguendo, then the issue is not whether the conduct manifests a disregard of standards which an employer has a right to expect; rather, the issue is whether Claimant’s mental illness constitutes “good cause” for the conduct. Certainly, if the UCBR found that Claimant’s mood disorder prevented him from going to work or reporting off work, and the UCBR did make such a finding here, then Claimant had “good cause” for his conduct.

Because the UCBR failed to properly consider Claimant’s mental illness in deciding whether Claimant had “good cause” for his conduct on the days in question, I would reverse.

1 . Over the years, the Mars School District (Employer) recognized that Claimant had behavioral problems due to his mental illness, and Employer is to be commended for its leniency towards Claimant during the period of employment. Employer nevertheless had the right to terminate Claimant for his erratic conduct, even if such conduct was a result of his mental illness. However, the issue before this court is whether Claimant had “good cause” for his behavior and, therefore, is eligible for unemployment compensation.

2 . The majority evidently believes that Claimant should have been able to get out of bed and go to work in spite of his mental illness; or, at least, Claimant should have been able to report off work. However, I note that, because Claimant did not have a telephone, Claimant would have had to get out of bed, get dressed, go outdoors and find someone on the street to take him to a pay telephone in order to report off work. (UCBR’s Finding of Fact, No. 6.)

3 . An "organic mental disorder” is “a psychological or behavioral abnormality associated with transient or permanent dysfunction of the brain, usually characterized by the presence of an organic mental syndrome." Stedman’s Medical Dictionary 457 (25th ed. 1990).