IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin Bridgeforth,
Petitioner
v.
Unemployment Compensation Board of Review
Respondent
No. 810 C.D. 2004
Submitted: September 24, 2004
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE JIULIANTE
FILED: December 14, 2004
Justin Bridgeforth (Claimant) petitions for review of the March 23, 2004 order of the
Unemployment Compensation Board of Review (Board) that affirmed the referee's denial
of Claimant's petition for benefits under Section 402(b) of the Unemployment
Compensation Law (Law). We affirm.
The Board made the following findings of fact:
1. [Claimant] was last employed as a tumbler by SPS Technologies, Inc. [Employer]
from September 11, 1995, at a final rate of $15.11 per hour and his last day of
work was July 14, 2003.
2. [Claimant] injured his back at work on July 14, 2003, and sought medical attention.
[Claimant's] physician recommended that he remain off work until further notice.
3. [Claimant] contacted [Employer's] nurse practitioner immediately after his appointment
and was told to bring in medical documentation about his back.
4. On July 15, 2003, [Employer] mailed information to [Claimant's] home address
regarding the Family and Medical Leave Act [FM LA2], and its short-term disability
policy. [Employer's] correspondence was not returned as undeliverable by the postal
authorities.
5. [Employer's] correspondence requested [Claimant] to provide medical certification
regarding his condition within fifteen days.
6. [Claimant] did not respond to [Employer's] correspondence.
7. The Board does not credit [Claimant's] assertion that he did not receive
[Employer's] correspondence.
8. On July 31, 2003, [Employer] mailed another letter to [Claimant] stating that
[Claimant] must contact [Employer] by August 8, 2003, or he would be considered to
have voluntarily terminated his employment.
9. On August 6, 2003, [Employer] called [Claimant] and left a message for [Claimant]
to contact [Employer] immediately regarding his employment.
10. [Claimant] did not contact [Employer] by August 8, 2003, and was considered to
have voluntarily terminated his employment.
11. [Claimant] provided no explanation for his failure to respond to [Employer's]
letter of July 31, 2003, or the phone call of August 6, 2003. (Findings of Fact
Nos. 1-11) Based upon these findings, the Board concluded that even though Claimant
may have had a legitimate reason for not working (i.e., his injury), he made no
contact with Employer after July 14, 2003. Claimant failed to contact Employer
or to provide a credible explanation for his failure to produce medical documentation
upon Employer's request. Thus, the Board determined that Claimant's lack of communication
over several weeks constituted job abandonment. Additionally, the Board concluded
that Claimant was provided a full and fair opportunity to present his position and,
therefore, denied his request for a remand. After the Board denied Claimant's request
for reconsideration, this petition for review followed.
On review, we are limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether con stitutional rights were violated or
whether errors of law were made. Sharp Equip. Co. v. Unemployment Compensation
Board of Review , 808 A.2d 1019 (Pa. Cmwlth. 2002).
Claimant also contends that he was told by Employer's nurse practitioner to provide
medical documentation of his injury upon his return to work. Claimant, however, did
not testify as such. When asked by the referee what the nurse practitioner told him,
Claim ant stated "She said to bring in a doctor's note about your back." (N.T. 6)
Claimant did not testify that the nurse practitioner told him to bring in his medical
documentation when he returned to work.
Claimant maintains that he did not receive the July 15, 2003 mailing which included
the short-term disability and FMLA applications and argues that Employer should have
sent it by certified mail. The Board found, however, that the mailing was not returned
by the postal authorities as undeliverable and that Claimant's testimony was not
credible on this point. (F.F. 4, 7) Notably, Claimant did not rebut Ms. DiNapoli's
testimony regarding the July 31, 2003 follow-up letter or the August 6, 2003 telephone
call.
Claimant further suggests that Ms. DiNapoli's testimony is not credible where she
testified that she called Claimant's last known phone number and left a message for
him to return her call. In his brief, Claim ant provides the Court with a different
phone number than that which Ms. DiNapoli called. Interestingly, however, Claimant
made no statement at the referee hearing that Ms. DiNapoli called the wrong phone
number and/or that his number had changed and that he provided Employer with his
current phone number. Had this been the case, we believe it was Claimant's
responsibility to bring the information to the referee's attention.
In unemployment compensation matters, the Board is the ultimate fact finder and is
empowered to resolve conflicts in the evidence and to determine the credibility of
witnesses. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253
(Pa. Cmwlth. 2004). The Board's findings of fact are based upon the credible
testimony of Ms. DiNapoli. Claimant's challenge is merely a misinterpretation
of the testimony provided. Accordingly, we find no merit to Claimant's stated
arguments that he did not voluntarily terminate his position and Employer's
witness gave inconsistent and incredible testimony.
In his final argument, Claimant contends that the referee erred in failing to keep
the record open in order for him to provide medical documentation regarding his
injury. Within that argument, Claimant suggests that the referee denied him a
full and fair hearing because the referee did not help Claimant to present his
case.
Additionally, Claimant's argument that Employer failed to include a cover letter
with the mailing is without merit. Claimant admitted that he had previously
received benefits under the FMLA. (N.T. 17) Therefore, he should have known how
to properly complete the forms.
"Where a claimant appears before a referee unrepresented by counsel, the referee must be more than usually cautious to insure that all relevant issues are examined and that a ll parties have an o pportunity to full y present their case." Brennan v. Unemployment Compensation Board of Review , 487 A.2d 73, 77 (Pa. Cmwlth. 1985). The referee m ust assi st uncounseled claimants in a m anner consistent with the im partial exercise of his duties. Id; see also 34 Pa. Code $ 101.21(a)(where a party is not represente d by counsel, the tribunal should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance co mpatible with the im partial discharge of its offic ial duties). The referee is not required t o become, and should not assume the role of, a claimant's advocate. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955 (Pa. Cmwlth. 2002). To the extent that Claim ant's th ird argument is not repetitive of his prior two arguments, we note that it similarly lacks merit. Claimant complains that the referee shoul d have held the record open so that he could have obtained medical documentation regardi ng his injury. Claimant attem pted to introduce into evidence a note from his doctor, dated July 14, 2003, which Claimant ad mittedly obtained at the "last minute." (N.T. 8) The referee sustained Ms. DiNapoli's objection to the doctor's note based on authenticity. Our review of the record satisfies us that the referee complied with his duties under the law. At the beginning of the hearing, the referee advised Claimant of his right to be represented by counsel, hi s right to call witnesses, and his right t o cross-examine adverse witnesses. The referee elicited testimony from Claimant regarding to whom he repor ted his injury and the circu mstances involving receipt of Em ployer's correspondences and term ination notice. The referee further provided Claimant with an opport unity at the end of the hearing to provi de any additional testimony in support of his position.
6
Moreover, we cannot agree that the referee erred in failing to keep the record
open so that Claimant could submit medical testimony. As noted by the referee,
the hearing notices fully explained to Claimant that he had the right to present
witnesses at the hearing and the right to subpoena records if need be.
Notwithstanding, we again note that Claimant testified that he did not provide
the July 14, 2003 doctor's note to Employer. When asked by the referee whether
he had provided Employer with a copy of the note, Claimant replied "No,
I didn't. I actually got this last minute. This is not the official file."
(N.T. 8)
Thus, regardless of whether Claimant would have had an opportunity to present
medical evidence of his injury, he did not communicate to Employer his
reasons for not reporting to work for several weeks. The Board therefore
properly concluded that Claimant voluntarily abandoned his employment.
See Simpson v. Unemployment Compensation Board of Review , 395 A.2d 309
(Pa. Cmwlth. 1978)(claimant's unauthorized absence fo r 11 consecutive work
days c onstituted job abandonment).
Accordingly, we affirm.
JESS S. JIULIANTE, Senior Judge