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Paolucci v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

June 19, 2015

Elizabeth Paolucci, Petitioner
Unemployment Compensation Board of Review, Respondent

Argued March 11, 2015

For Elizabeth Paolucci, Petitioner: Howard Andrew Rosen, H. Rosen Law, P.C., Philadelphia, PA.

For Unemployment Compensation Board of Review, Respondent: Gerard Matthew Mackarevich, Commonwealth of Pennsylvania, Governor's Office of General Counsel, Unemployment Compensation Board of Review Division, Harrisburg, PA; Maribeth Wilt-Seibert, PA Department of Labor & Industry, PA Dept of Labor & Industry, Harrisburg, PA.




Elizabeth Paolucci (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits for the stated reason that she committed willful misconduct, which rendered her ineligible under Section 402(e) of the Unemployment Compensation Law.[1] In this case of first impression, we consider what happens when a disabled employee's assertion of her rights under the Workers' Compensation Act[2] is construed by her employer as violating the standards of behavior it can reasonably expect of its employees. We conclude that, where an employee is on workers' compensation disability, the determination of whether her employer's expectations for her behavior are reasonable is governed by the standards of the Workers' Compensation Act. The Board's findings of fact do not support its legal conclusion that Claimant violated a reasonable expectation of Employer and, accordingly, we reverse.


Claimant worked for Wal-Mart Associates (Employer) from December 7, 2007, through August 4, 2011, most recently as an inventory management specialist supervisor. On July 17, 2010, she sustained a brain concussion when shelving collapsed on her head. Employer filed a Notice of Compensable Payable (NCP) with the Bureau of Workers' Compensation that described Claimant's work injury as a concussion, for which it was paying total disability in the amount of $422.50 per week. Certified Record Item No. 10, Claimant Exhibit #1 (C.R. No., # ). In November of 2010, Claimant saw her two treating physicians; neither cleared her to return to work. C.R. No. 5, #6; C.R. No. 10, #2.[3] In December of 2010, Claimant attended an independent medical examination (IME) at the request of Employer. The IME physician opined that Claimant was recovered from her concussion and could return to work to her pre-injury job with no restrictions. Upon receiving the IME report in January 2011, Employer's Store Manager, Henry Wolfe, called Claimant about several jobs. Claimant's attorney responded to those calls. Counsel reminded Wolfe that he represented Claimant with respect to her workers' compensation benefits and that he had previously advised Wolfe that communications to Claimant should be made to her counsel. Notes of Testimony, 3/23/2012, at 13 (N.T. ). Claimant's attorney also advised Wolfe that Claimant disputed the IME report that she was capable of working without restrictions. Id. at 14. Employer then instituted a workers' compensation proceeding to terminate, modify or suspend Claimant's workers' compensation disability benefits.

On July 11, 2011, in the course of the workers' compensation proceeding, Employer deposed Claimant. In that deposition, Claimant testified that neither of her two treating physicians had released her to return to work and that they were still evaluating her condition.[4] She also testified that she was not capable of returning to work as an inventory management supervisor because the job required bending over to pick up large heavy boxes and climbing ladders. Her concussion had left her with impaired focus and poor balance. Further, Claimant's pre-injury job was very fast-paced and stressful, which she could not handle, given her limitations. However, she volunteered her personal belief that she could do the job of a food inspector, a less stressful and slower-paced position. She had previously held this position with Employer. Employer did not respond to Claimant's statement that she could do a light duty job with a job offer, and Claimant continued to collect total disability compensation in accordance with the NCP.

On August 4, 2011, Employer discharged Claimant without written or oral explanation. She did not learn of her discharge until Merrill Lynch contacted her regarding administration of her 401(k) plan. On September 22, 2011, the parties settled their workers' compensation dispute. On October 9, 2011, Claimant applied for unemployment compensation benefits. In response, Employer's representative, TALX, advised the UC Service Center in its written questionnaire that Claimant had " voluntarily quit" her employment. C.R. No. 4, #10, ¶ 5. TALX also stated on the questionnaire that Claimant did not advise Employer of " his/her health limitations." Id at ¶ 7. TALX left blank the question " Did you offer other work to the Claimant?" Id. at ¶ 8. It also left blank the directive to " explain why the work [within the claimant's limitations] was not offered to the claimant." Id. TALX responded " no" to the question " Did the claimant refuse the offer of other work?" Id. at ¶ 9.

The UC Service Center denied benefits for the stated reason that Claimant " has not been released to return to work by her doctor" and, thus, was not available for work. C.R. No. 6, Finding of Fact No. 5. Claimant appealed.

First Referee Hearing

A hearing on Claimant's appeal took place on December 23, 2011. Although TALX had received notice of the hearing, it did not appear. Nor did it contact the Referee that it would not attend the hearing. Claimant appeared and presented evidence.

Claimant presented evidence that she was available for work as of the date of her October 9, 2011, application for unemployment compensation. First, she presented four pages from her workers' compensation deposition in which she stated her belief that she could do the job of a food inspector. That deposition took place on July 11, 2011, well before her application for unemployment compensation. Second, she presented a note from her neurologist dated December 21, 2011, stating that Claimant could return to work. On December 28, 2011, the Referee issued a decision with the following Findings of Fact:

1. The Claimant worked fulltime as Inventory Control Supervisor for Wal-Mart Associates from December 7, 2007 through August 4, 2011 at a final rate of $14.55 per hour.
2. On July 17, 2010, the Claimant suffered a work related head injury resulting in brain concussions.
3. As a result of the injury, the Claimant could not carry out her regular duties.
4. The Claimant remained in doctor's care until July 11, 2011.
5. From July 11, 2011, the Claimant was able and available for some kind of work.

C.R. No. 11 at 1. The Referee awarded Claimant unemployment compensation as of October 15, 2011.

On January 6, 2012, TALX appealed to the Board and requested a new hearing. It explained that its witness, Henry Wolfe, became ill with pneumonia and could not participate in the Referee's hearing. The Board ordered a remand to the Referee, following which the Board would determine whether Employer had good cause for not attending the hearing on December 23, 2011, and, if so, address the merits of the case.

Second Referee Hearing

At the remand hearing, Employer presented evidence that Claimant's supervisor, Henry Wolfe, had been medically incapacitated at the time of the December hearing. Claimant's counsel argued that Employer did not present good cause, noting that TALX should have contacted the Referee and requested a continuance. It did neither. Further, TALX offered no evidence that only Wolfe could testify about Claimant's separation from employment.

The remainder of the remand hearing concerned Claimant's eligibility for unemployment compensation. The parties stipulated that Claimant did not voluntarily quit, as Employer had stated in its questionnaire. Rather, Employer discharged Claimant on August 4, 2011, while she was collecting total disability workers' compensation benefits.

On the merits, Wolfe testified that Employer terminated Claimant because she did not return to work from " her Workers' Comp leave of absence" after she was cleared to do so by Employer's IME physician in December 2010. N.T., 3/23/12, at 5.[5] Wolfe then stated that " we had made several attempts to contact [Claimant] to let her know that we had positions available for her and they were intercepted by her attorney." N.T., 3/23/2012, at 5-6. Wolfe also stated that Claimant did not return Employer's

phone calls or any of our letters [letting her] know that we had positions available for her. And due to that reason, we have no -- we waited several months after that occurrence before we actually separated her.

Id. at 6 (emphasis added). Claimant's Counsel asked Wolfe whether Employer had offered Claimant any employment after July 11, 2011, but he did not answer the question. Id. at 9-10. Instead, Wolfe demurred, stating that Claimant " could have" returned to work because " [s]he was still employed." Id. at 10. Finally, Wolfe acknowledged that Employer " never received any documentation from [Claimant's] treating physician" that she could work in any capacity. N.T. 3/23/12 at 14.

Claimant confirmed her workers' compensation deposition testimony. In that testimony she explained that she did not agree with the IME report that she was capable of returning to her prior position in December of 2010; indeed, she did not believe she could do any job at that time. By the time of Employer's deposition of her on July 11, 2011, she still did not believe she could do her pre-injury job as inventory control specialist. However, in response to Employer's question about whether she could return to any kind of employment, she answered that it was possible that she could do the job of a food inspector.

The Board held, first, that Employer had good cause not to appear at the first Referee hearing.[6] The Board then addressed the merits of Employer's appeal.

The Board adopted the first five Findings of Fact in the Referee's Decision of December 28, 2011, and added eight new findings:

6. The claimant could have worked in a light duty position for the employer as of July 11, 2011.
7. The employer did send the claimant letters and did make phone calls that were not returned when the employer's physician indicated that the claimant could work.
8. Then the [claimant's] attorney told the employer to not directly contact the claimant.
9. The claimant entered into a workers' compensation agreement on September 22, 2011.
10. The claimant did not voluntarily resign as part of the agreement.
11. The claimant had already been discharged at the time that she entered into the workers' compensation agreement.
12. The claimant was discharged because she failed to contact the employer when she became able to work.
13. The claimant is able and available for work as of July 11, 2011.

Board Adjudication at 1-2, Findings of Fact No. 6-13. Based on its findings of fact, the Board concluded that Claimant was ineligible for unemployment compensation by reason of willful misconduct. It reasoned as follows:

The claimant never made the employer aware that she could return to work. Further, the claimant did not respond to the employer's offer of work. Finally, the claimant's attorney told the employer to no longer contact the claimant.

Board Adjudication at 3. The Board did not cite a work rule or policy that was violated by Claimant. At oral argument before this Court, the Board explained that Claimant's willful misconduct consisted of her failure to meet a reasonable expectation of Employer.

Claimant petitioned for this Court's review.[7] On appeal, she raises two issues. First, she argues that substantial evidence does not support the Board's finding that Employer offered Claimant a job after July 11, 2011, let alone that Claimant refused to respond to such an offer. Second, Claimant contends that the parties in the workers' compensation proceeding communicated through their attorneys and in no way did Claimant's or her counsel's conduct in the workers' compensation proceeding constitute willful misconduct.

Willful Misconduct

To prove willful misconduct, the employer must show that the employee violated a policy, work rule or reasonable expectation of employer. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07 (Pa. Cmwlth. 2011). Employer presented no evidence of a policy or work rule that Claimant allegedly violated. The Board's finding of willful misconduct hinges on whether Employer had a " reasonable expectation" that Claimant violated.

A reasonable expectation of employee conduct may vary from case to case, i.e., standards that are expected by one employer may not be the standards of another employer. Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867, 868 (Pa. 1975). Generally, this Court has categorized conduct that involves " a knowing falsehood or misrepresentation to an employer by an employee concerning an employee's work" as a disregard of an expected standard of behavior. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 256 (Pa. Cmwlth. 2004) (quoting Groover v. Unemployment Compensation Board of Review, 134 Pa.Cmwlth. 617, 579 A.2d 1017, 1019 (Pa. Cmwlth. 1990)). Examples of substandard behavior include: lying to a supervisor ...

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