K.A. Sones v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Ann Sones, :
Petitioner :
:
v. : No. 432 C.D. 2019
: Argued: February 9, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: March 9, 2021
Kimberly Ann Sones (Claimant) petitions for review from an order of
the Unemployment Compensation Board of Review (Board), finding her ineligible
for unemployment compensation (UC) benefits pursuant to Section 402(e) of the UC
Law (Law)1 for failing to respond to the request of Nicole Carnicella, DMD, PC
(Employer) to produce a fitness-for-duty letter,2 after Claimant’s attorney notified
Employer that Claimant was suffering from macular degeneration. Claimant’s
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law states, in pertinent part, that “an employe shall be ineligible
for compensation for any week—[i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work, irrespective of whether or
not such work is ‘employment’ as defined in this act.” 43 P.S. §802(e).
2
Also referred to, alternatively, as a “fit-for-duty” letter.
attorney noted that Claimant’s condition was a result of overexposure to high energy,
visible blue light from a curing light used as part of Claimant’s duties with Employer.
Certified Record (C.R.), Item No. 4.
I. Background
Claimant, an expanded functional dental assistant (EFDA), last worked
for Employer on February 1, 2018, and was discharged for failing to provide
documentation from her physician regarding her fitness for duty. C.R., Item No. 8.
Claimant applied for UC benefits. The UC Service Center determined that Claimant
was eligible for benefits pursuant to Section 401(d)(1) of the Law,3 43 P.S.
§801(d)(1), but denied her benefits under Section 402(e) of the Law, 43 P.S. §802(e),
for willful misconduct. Id.
Claimant appealed the UC Service Center’s determination and a
hearing was held before a UC referee on May 31, 2018. The UC referee made the
following findings. Claimant was off work for about two weeks due to a shoulder
surgery she underwent on February 5, 2018. Referee Decision/Order, 6/4/2018,
Finding of Fact (F.F.) No. 2. On February 6, 2018, Claimant notified Employer that
3
Section 401(d)(1) of the Law reads:
Compensation shall be payable to any employe who is or becomes
unemployed, and who –
....
(d)(1) Is able to work and available for suitable work: Provided, that no
otherwise eligible claimant shall be denied benefits for any week because he is in
training with the approval of the secretary nor shall such individual be denied
benefits with respect to any week in which he is in training with the approval of the
secretary by reason of the application of the provisions of this subsection relating
to availability for work or the provisions of section 402(a) of this act relating to
failure to apply for or a refusal to accept suitable work.
43 P.S. §801(d)(1).
2
she had been diagnosed with macular degeneration caused by exposure to high
energy visible blue light in her workplace. F.F. No. 3. On February 15, 2018,
Employer requested Claimant provide a fitness-for-duty letter. F.F. No. 4. On
February 19, 2018, Claimant responded with a letter noting that if she was not invited
to return to work at full duty, on or before February 26, 2018, she would consider
the omission to be a decision by Employer that her employment had been terminated.
F.F. Nos. 5, 6. Employer responded with another letter to Claimant on February 20,
2018, instructing her to provide a fitness-for-duty letter from her treating physician,
indicating her prognosis and her status relative to performing her regular duties. F.F.
No. 7. “At no time did [Claimant] or her attorney notify [Employer] that [she] would
have any difficulties . . . obtaining a fitness for duty letter . . . or that more time
would be needed to provide [it].” F.F. No. 8. Claimant was discharged from her
employment on February 26, 2018, for failure to provide Employer with the
requested letter. F.F. No. 9.
The UC referee affirmed the decision of the Service Center,
determining that Claimant was eligible for benefits under Section 401(d)(1) of the
Law but that she was ineligible for benefits under Section 402(e) of the Law for her
failure to provide a fitness-for-duty letter as directed by Employer. Claimant
appealed to the Board.
In its March 1, 2019 Decision and Order, the Board affirmed the
Decision/Order of the UC referee. In reaching its conclusion, the Board determined
that Claimant “did not present a reason for not providing the fit[ness-]for[-]duty
letter. Furthermore, she never expressed that she would have difficulty securing
one.” C.R., Item No. 15, at 2. In addition, the Board determined that Employer’s
“request for the [fitness-for-duty] letter was reasonable [and] that . . . Claimant
3
lacked just cause for her non-compliance with the directive.” Id. The Board added
that “[i]n this case, there is no evidence to rebut the presumption that [Claimant] is
able and available for work. Accordingly, the [C]laimant is eligible for benefits
under Section 401(d)(1) of the Law for the weeks at issue.” C.R., Item No. 15, at 3.
Nevertheless, the Board concluded that “[C]laimant is ineligible for benefits under
the provisions of Section 402(e) of the Law,” ordering “[t]he decision of the [r]eferee
is affirmed and benefits are denied.” Id. Claimant now petitions this Court for
review.4
II. Arguments
A. Claimant’s Arguments
Claimant argues that the Board committed an error of law in
determining she acted with willful misconduct because she acted in good faith by
responding to Employer’s request for a fitness-for-duty letter by providing records
from her medical providers which reflected the same. Claimant’s Br. at 12.
Claimant contends that producing a fitness-for-duty letter would cost thousands of
dollars and, thus, it was not feasible for her to provide one. Thus, she presented her
medical records as an alternative. Claimant’s Br. at 13. Claimant contends that the
UC referee and the Board “capriciously disregarded material competent evidence
that . . . the fit[-]for[-]duty letter was not provided because it was economically not
4
Our review is limited to determining whether the Board’s findings were supported by
substantial evidence, whether the Board committed an error of law, or whether the Board violated
Claimant’s constitutional rights. Dep’t of Corr. v. Unemployment Comp. Bd. of Rev., 943 A.2d
1011 (Pa. Cmwlth. 2008). The Board’s findings of fact are conclusive on appeal as long as they
are supported by substantial evidence. Grieb v. Unemployment Comp. Bd. of Rev., 827 A.2d 422(Pa. 2003). “Substantial evidence is defined as evidence a reasonable mind might accept as
sufficient to support the conclusion reached.” Frimet v. Unemployment Comp. Bd. of Rev., 78
A.3d 21, 26 n.7 (Pa. Cmwlth. 2013).
4
feasible, that she would have difficulty securing one, and that she furnished medical
records to her physician employer in the alternative.” Id.Further, Claimant maintains that Employer was a dentist, a physician
who had familiarity with medical records, “a knowledge of medical terms, and an
understanding of medical terminology superior to a non-physician employer,” and
thus, she “had the capacity and resources available to comprehend and appreciate
the information contained in the medical records furnished by [Claimant] sufficient
to make an employment[-]related decision.” Claimant’s Br. at 14.
Claimant argues that she did not act with wanton and willful disregard
for Employer’s interests. Rather, she simply provided Employer with medical
records, in lieu of a fit-for-duty letter, which contained sufficient information for
Employer to make a decision about her employment. Claimant adds that the
evidence of record does not support a determination that she acted in deliberate
violation of Employer’s rules by providing the medical records, instead of a letter,
and that she did not disregard standards of behavior which an employer can expect
of an employee by providing the same. In addition, Claimant asserts the record does
not support that she acted with negligence “which manifests culpability, wrongful
intent, evil design, or intentional or substantial disregard for [Employer’s] interests
or [Claimant’s] duties and obligation by furnishing [Employer] with medical records
containing [sufficient information for Employer] to make an employment decision
rather than providing [Employer] the technical nicety and form of a medical
narrative.” Claimant’s Br. at 16-17. Thus, Claimant asserts that the record does not
support a determination that her behavior rose to the level of willful misconduct
within the meaning of Section 402(e) of the Law, 43 P.S. §802(e).
5
B. Board’s Arguments
In its response to Claimant’s arguments, the Board maintains that
Employer is not an ophthalmologist and does not have the expertise to determine
whether Claimant’s macular degeneration would impair her ability to perform her
job as an EFDA. Board’s Br. at 4-5. Employer’s review of the medical records
provided by Claimant led Employer to become concerned that Claimant was
experiencing blurred vision, trouble reading and seeing pictures, and issues with
color, which, in turn, were leading to problems filling cavities and matching tooth
color with shade guides. Hearing Transcript, 5/31/2018, at 5-6, C.R., Item No. 11.
The Board notes that “Employer testified that if Claimant had provided a letter from
a doctor, identifying what parts of Claimant’s job she was able to perform and which
parts she could not, and had the limitations of Claimant’s ability to perform her job
been minimal, Employer would have retained Claimant as an employee.” Board’s
Br. at 5. In this regard, Employer requested a fitness-for-duty diagnosis from
Claimant’s treating physician and informed Claimant that without such an assurance,
Employer “would not allow Claimant to jeopardize the well-being of Employer’s
patients.” Board’s Br. at 6.
The Board states that “Claimant sent Employer 51 pages of
ophthalmology and medical records – none of which contained her doctor’s
assessment of Claimant’s ability to perform the functions of her job.” Board’s Br.
at 8. The Board acknowledges that the term “willful misconduct” is not defined in
the Law but that Pennsylvania courts have defined it as
an act of wanton or willful disregard of the employer’s interests, a
deliberate violation of the employer’s rules, a disregard of the standards
of behavior which the employer has a right to expect of an employee,
6
or negligence indicating an intentional disregard of the employer’s
interests of or the employee’s duties and obligations to the employer.
Board’s Br. at 9 (citing Frumento v. Unemployment Comp. Bd. of Rev., 351 A.2d
631, 632 (Pa. 1976) (citing Moyer v. Unemployment Comp. Bd. of Rev., 110 A.2d
753 (Pa. Super. 1955)).
The Board asserts that “an employee’s deliberate refusal to comply with
her employer’s request or directive can constitute willful misconduct.” Board’s Br.
at 9. “The employer has the burden of proving the directive was reasonable and the
claimant has the burden of proving good cause for failing to comply. . . .” Id. (citing
Legare v. Unemployment Comp. Bd. of Rev., 444 A.2d 1151 (Pa. 1982)). The Board
argues that Claimant does not challenge the reasonableness of Employer’s request
for a fitness-for-duty letter. She only challenges the conclusion that Claimant did
not have good cause for failure to respond to Employer’s directive that she provide
the same. Board’s Br. at 10. The Board adds that it was not reasonable for Claimant
to provide her medical records in lieu of the letter because Employer is a dentist, not
an ophthalmologist, and she “lacked the qualification[s] to assess Claimant’s ability
to perform the functions of her job.” Id.In regard to Claimant’s contention that she could not afford a fitness-
for-duty letter, the Board notes that Claimant never informed Employer of the reason
she was unable to comply. “Claimant did not inform Employer she could not
produce a fit-for-duty letter because of the cost,” and “the reason for Claimant’s
noncompliance was not self-evident.” Thus, “Claimant’s failure to inform Employer
of the reason for her noncompliance negates any good cause Claimant may have had
for failing to produce a fit-for-duty letter.” Board’s Br. at 14-15. The Board adds
that, in regard to Claimant’s contention that it disregarded Claimant’s assertion that
she could not afford a fit-for-duty letter, “failure to address Claimant’s reason for
7
noncompliance is harmless error and does not warrant reversing the Board’s denial
of benefits.” Board’s Br. at 15.
III. Discussion
We reiterate, at the outset, that the term “willful misconduct” is not
defined in the Law, and that our courts have defined it as
an act of wanton or willful disregard of the employer’s interests, a
deliberate violation of the employer’s rules, a disregard of the standards
of behavior which the employer has a right to expect of an employee,
or negligence indicating an intentional disregard of the employer’s
interests of or the employee’s duties and obligations to the employer.
Frumento, 351 A.2d at 632 (citing Moyer, 110 A.2d 753).
“If an employer’s request is reasonable in the context of the particular
employment relationship and the employee’s refusal is unjustified, such conduct
evidences a disregard of the standards of behavior an employer expects of his
employees.” Kretsch v. Unemployment Comp. Bd. of Rev., 476 A.2d 1004, 1006
(Pa. Cmwlth. 1984) (citation omitted).
In the present matter, Employer had a justifiable reason for requesting
a fit-for-duty letter from Claimant. As an EFDA, Claimant’s eyesight is critical to
the satisfactory performance of her job. Once Claimant raised the issue of macular
degeneration, it was entirely reasonable, in fact incumbent upon Employer, a dentist
who must necessarily protect the safety of her clients, to ask Claimant to provide
evidence she was fit to perform her job. Further, simply because Employer is a
healthcare professional does not mean she is able to interpret records from all
medical specialists and all medical specialties. Thus, it was fair for her to ask
Claimant to provide a fit-for-duty letter, rather than merely providing raw medical
information related to a non-dental specialty.
8
In its decision and order, the Board stated: “[Claimant] did not present
a reason for not providing the fit-for-duty letter. Furthermore, she never expressed
that she would have difficulty securing one.” C.R., Item No. 15, at 2. “[T]he [Board]
is the ultimate fact-finder in [UC] matters . . . .” Sipps v. Unemployment Comp. Bd.
of Rev., 181 A.3d 479, 484 (Pa. Cmwlth. 2018) (quoting Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008)). “It is
irrelevant whether the record contains evidence to support findings other than those
made by the fact-finder; the critical inquiry is whether there is evidence to support
the findings actually made.” Ductmate Indus., 949 A.2d at 342. Given that the
Board found Claimant never explained to Employer that she would have difficulty
producing the requested fit-for-duty letter, Claimant did not establish good cause for
failing to produce the letter, and thus, it was harmless error, if error at all, for the
Board not to consider Claimant’s stated reason for failing to produce the letter. We
note here too that Employer requested a fit-for-duty letter on more than one occasion
– February 15, 2018 and on February 20, 2018. See C.R., Item No. 15, Board’s
Decision and Order, Finding of Fact 3 and 6. Thus, there was more than one
opportunity for Claimant to explain to Employer any difficulties she was having in
procuring the letter, and it is also evidence of Employer’s willingness to work with
Claimant.5
5
As further support for the proposition that Employer’s request for a fit-for-duty letter was
reasonable and that Employer demonstrated a willingness to work with Claimant to ensure a safe
return to work, if such a return was possible, we note the following exchange between the UC
referee (identified as “R”) and Employer (identified as “E”) during the May 31, 2018 hearing
before the referee:
R[:] [I]f she would have handed in something from the doctor stating
something to the effect of she’s able to perform this part of her job, . . . these are
(Footnote continued on next page…)
9
The Board did not err in determining Claimant to be ineligible for UC
benefits when it determined she engaged in willful misconduct by failing to respond
to Employer’s request to produce a fit-for-duty letter where genuine safety concerns
were at issue. Claimant’s failure to provide the letter represented willful disregard
of Employer’s interests and clear disregard of the standards of behavior which
Employer had a right to expect of Claimant, and/or negligence indicating an
intentional disregard of Employer’s interests. Accordingly, we determine that the
Board did not err by affirming the UC referee’s determination that Claimant is
ineligible for UC benefits, per Section 402(e) of the Law, 43 P.S. §802(e).
IV. Conclusion
Based on the foregoing, we affirm the order of the Board.
______________________________
J. ANDREW CROMPTON, Judge
the only things that she can’t do and they’re very minimal that she can’t do of her
job, could you have brought her back then?
E[:] Absolutely.
Transcript of Testimony, 5/31/18, at 7.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Ann Sones, :
Petitioner :
:
v. : No. 432 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 9th day of March 2021, the March 1, 2019 order of the
Unemployment Compensation Board of Review is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge