GOMBITA v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW No. 2789 C.D. 2010.
Ronald Gombita, Petitioner, v. Unemployment Compensation Board of Review, Respondent.
Commonwealth Court of Pennsylvania.
Filed: October 12, 2011.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge; HONORABLE ROBERT SIMPSON, Judge; HONORABLE JAMES R. KELLEY, Senior Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON.
Ronald Gombita (Claimant), representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied his claim for benefits under Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit).
Claimant worked for Waste Management (Employer) as a full-time residential waste driver for approximately one month during March and April 2010. During that time, Claimant injured his left arm leaving him unable to work. Claimant subsequently filed a claim for workers' compensation benefits, which was granted. Claimant received workers' compensation benefits throughout the time covered in this opinion. Notes of Testimony, 8/23/10 (N.T.), at 6.
A month after the injury, Claimant's treating physician informed Employer and Claimant that Claimant could perform certain work. Specifically, the physician allowed Claimant to perform light duty work, which included limited walking, standing, and lifting, and sedentary work.
Shortly thereafter, Employer notified Claimant by letter (June Letter), that a light duty position was available for him. The light duty consisted of filing paperwork, and picking up trash at the landfill hauling site with the aid of a shoulder bag. The letter directed Claimant to report to work the following Wednesday.
On that subsequent Wednesday, Claimant did not report to work or contact Employer to explain his failure to report. As a result, Employer considered Claimant voluntarily terminated. At that time, Claimant applied for unemployment benefits, which were initially granted. Employer appealed.
After a hearing, Ryan Sallee (Employer's Witness), one of Employer's operations managers, and Claimant testified. The referee determined that Claimant was ineligible for benefits. Claimant appealed.
On Claimant's appeal, the Board entered its own decision. Specifically, the Board found:
Bd. Op., 11/5/10, Findings of Fact (F.F.) Nos. 1, 3, 7-10.
Based on these findings, the Board determined that despite his injury Claimant was able and available for suitable work; however, he became ineligible for continued unemployment compensation, under Section 402(b), when he refused an offer of suitable work without good cause. Claimant petitions for review.
In Claimant's petition for review, he challenges whether substantial evidence supports the Board's factual findings. Specifically, he argues the Board Findings of Fact Nos. 1, 3, 7, 8, 9, and 10 lack record support.
A. Substantial Evidence
In an unemployment compensation case, the Board's factual findings are conclusive on appeal so long as the record taken as a whole contains substantial evidence to support those findings.
In his petition for review, Claimant argues that his last day of work was not April 16, 2010, as the Board found, but rather, October, 13, 2010. However, at the referee hearing, Claimant testified the last day he worked for Employer was April 16, 2010. N.T. at 4. As such, this finding is supported.
Next, Claimant asserts Board Finding of Fact No. 3, which relates to what type of work the treating physician restricted Claimant to performing, is not supported by the record. Contrary to Claimant's assertion, Claimant admitted that the doctor "put me on light duty." N.T. at 4. Similarly, Employer's witness stated that he became aware the Claimant was released for light duty work, that they received the information the end of May, and that Employer offered light duty work with "the same restrictions, the 10 pounds lift with the left arm and walk and stand on occasion." N.T. at 7. The offered light duty job included filing paperwork in the office, and picking up trash with aid of a shoulder bag. N.T. at 7-8. Employer tailored the position to conform to Claimant's medical restrictions. N.T. at 8;
Moreover, Claimant's argument that Ms. Leslie Watts (Case Manager), a workers' compensation case worker, told him the offered position would be different than as stated in the June Letter was rejected as not credible. F.F. No. 7; N.T. at 8. In this regard, the Board stated, "The Board finds insufficient credible evidence in support of the claimant's assertions regarding the alleged statements attributable to this person [a Workers' Compensation case manager]. The written offer of work provided by the employer dated June 3, 2010, complied with the claimant's medical restrictions. Therefore, the offer was suitable and the claimant did not have good cause for refusing it." Bd. Op., 11/5/10 at 3-4.
Lastly, Claimant challenges the basis for Board Findings of Fact Nos. 7, 8, 9, and 10, which were all made after weighing the credibility of conflicting testimony about contacts between Claimant and Employer. As determined by the Board, Employer's Witness testified credibly that Claimant never called the local site or made contact with Employer. N.T. at 8. As discussed above, Claimant's testimony to the contrary was deemed not credible. Additionally, it was undisputed that Claimant did not report to work to attempt the offered light duty position. N.T. at 6, 8.
In sum, viewing the evidence in the light most favorable to Employer, the prevailing party, the record supports the Board's findings that: 1) Claimant's last day of work was April 16, 2010; 2) the treating physician informed Claimant and Employer regarding Claimant's restricted work ability; 3) Employer offered Claimant a light duty position consistent with Claimant's medical restrictions; 4) Claimant alleged that he called his Case Manager to discuss the offered position, but the Board rejected this testimony; 5) Claimant alleged that the Case Manager told him not to call Employer, but the Board rejected this testimony; and, 6) Claimant did not report to work or contact Employer regarding the proposed light duty position.
Therefore, substantial evidence supports the challenged findings. Accordingly, Claimant's argument that substantial evidence does not support the Board's findings fails.
B. Section 402(b), Voluntary Leave and Suitable Work
Claimant's petition for review solely challenged the sufficiency of the evidence upon which the Board made its determination; therefore, the issue of whether the Board erred as a matter of law is waived.
Under Section 402(b) of the Law, an employee is ineligible for unemployment compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Suitable work includes all work that the employee is capable of performing.
In his brief, Claimant cites
Here, Employer offered Claimant a light duty position in order to accommodate his current physical condition. Based on the Board's findings, the offered light duty position was consistent with Claimant's medical restrictions. F.F. Nos. 2, 5. Additionally, the position's appropriateness was not outweighed by any potential reduction in salary, or lack of prior training.
Once Employer offered Claimant suitable work, Claimant had to either accept the work, or establish a necessitous and compelling reason to voluntarily terminate employment.
For these reasons, we discern no error in the Board's decision. Accordingly, we affirm.
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