           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry K. Johnson,                            :
                             Petitioner      :
                                             :
               v.                            :   No. 1841 C.D. 2016
                                             :   Submitted: September 1, 2017
Unemployment Compensation                    :
Board of Review,                             :
                    Respondent               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: January 19, 2018

               Henry K. Johnson (Claimant) petitions for review from an order of the
Unemployment Compensation Board of Review (Board), which affirmed a referee’s
decision finding Claimant ineligible for unemployment compensation (UC) benefits
under Section 402(e) of the Unemployment Compensation Law.1 The Board found
Claimant’s error in dispensing medication to a client constituted willful misconduct.
Claimant argues that he was denied his due process rights and that the Board’s
decision is not supported by substantial evidence. Upon review, we affirm.


                                      I. Background
               Elwyn Inc. (Employer) employed Claimant as a full-time life skills
associate from 2000 until 2016. Claimant’s job included dispensing medications to


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
clients. In August 2014, Claimant received a three-day suspension for a medication
error. The suspension letter stated that another error could lead to termination.


             Relevant here, in May 2016, Claimant made another medication error
by signing a record stating he dispensed a client medication when he did not.
Employer obtained an investigation of the incident, after which it terminated
Claimant’s employment.


             Claimant applied for UC benefits. In his initial telephone interview
with the Department of Labor and Industry (Department), he admitted the
medication error, saying he was confused.


             In its telephone interview with the Department, Employer stated it
discharged Claimant because of a medication error. Employer explained that
Claimant initialed a medication record stating he gave a medication that he did not
actually give. Notably, Employer stated it provided a requisite prior warning in
August 2014.


             The Department issued a Notice of Determination denying benefits,
finding Claimant violated Employer’s rules because he was confused. Claimant
appealed.


             A referee conducted a hearing.           At the hearing, Employer’s
representative stated Employer obtained an outside investigation concerning the
medication error. Employer relied on the results of the investigation in deciding to



                                          2
discharge Claimant. However, Employer did not produce the investigation report or
any of the supporting documentation, and it did not present testimony from the
investigator.


                Employer submitted in evidence its written progressive discipline
policy concerning medication errors. Under the policy, a further medication error
following a prior suspension carried a penalty of discharge from employment.
Certified Record (C.R.), Ref. Hr’g, 7/29/16, Ex. E-5. Employer’s representative
testified that Claimant was informed of the policy.


                Employer also placed into evidence an August 2014 letter notifying
Claimant of his suspension and warning that he could be terminated if he made
another error. Employer’s representative testified that Claimant made a medication
error in May 2016, and because his file contained a record of his prior suspension,
discharge was the next step under Employer’s discipline policy. Consistent with
Employer’s prior statement to the Department, Employer’s representative testified
that the 2014 suspension was the warning Claimant received prior to discharge.


                The referee determined Claimant committed willful misconduct. The
referee found that Claimant forgot to give medication, and that in light of his prior
warning, he did not have good cause for the error.


                Claimant filed a timely appeal to the Board, asserting that the record
did not support the referee’s determination of willful misconduct.          Claimant
requested the taking of additional evidence, but the Board denied the request.



                                            3
               The Board affirmed the referee’s decision, issuing its own findings.
The Board determined that Claimant’s failure to give the medication constituted
willful misconduct because Claimant recorded that he gave a medication when he
did not. The Board inferred from the false record that Claimant’s conduct was
deliberate.


               Claimant filed a request for reconsideration, which the Board denied.
Claimant then filed a timely petition for review with this Court.


                                           II. Issues
               Claimant presents three issues on appeal.2 We summarize them as
follows: (1) the Board violated Claimant’s due process rights because he did not
receive copies of investigation documents on which Employer relied in making its
termination decision; (2) the Board lacked substantial evidence that Claimant made
a medication error; and, (3) the Board lacked substantial evidence for its
determination that Claimant engaged in willful misconduct.




       2
          Our review of a final decision by the Board is limited to determining whether the Board
lacked substantial evidence for a material finding of fact, made an error of law, violated the
petitioner’s constitutional rights, or failed to follow agency procedures. Ductmate Indus. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Substantial evidence is
relevant evidence sufficient to allow a reasonable mind to reach a conclusion. Kauffman Metals,
LLC v. Dep’t of Labor & Indus., 126 A.3d 1045 (Pa. Cmwlth. 2015), appeal denied, 135 A.3d 588
(Pa. 2016).
        The Board is the ultimate finder of fact, resolving all issues of credibility, conflicting
evidence, and evidentiary weight. Ductmate. The question is not whether the evidence would
support different findings from those made by the Board, but rather, whether the record evidence
supports the findings the Board actually made. Id.



                                                4
                                    III. Discussion
                                    A. Due Process
             Claimant first argues that the Board violated his due process rights
because he did not receive a copy of Employer’s investigation report and related
documents. We disagree.


             The record reveals that Claimant asked about the report at the referee’s
hearing; however, he did not specifically request a copy. See C.R., Ref. Hr’g, Notes
of Testimony (N.T.) at 12. Similarly, in his appeal to the Board, Claimant did not
request a copy of the investigation report, even though he did request a copy of the
hearing transcript. See C.R., Item No. 12 (Petition for Appeal) at 4. Claimant cites
no authority entitling him to receive information he did not request. As the record
does not indicate any request by Claimant for the investigation report, its absence
did not deprive him of any right.


                             B. Substantial Evidence
             In his next argument, Claimant contends that the Board lacked
substantial evidence for its finding that Claimant committed a medication error. The
Board found that Claimant admitted the error, but Claimant insists he merely
acknowledged Employer’s representations of what happened.


             Claimant argues that the Board improperly relied on hearsay evidence
of Claimant’s error. At the hearing, Employer acknowledged that it conducted an
investigation of Claimant’s error, but Employer did not offer testimony from its




                                          5
investigator or produce the investigative report and related documents. However,
Claimant did not raise a hearsay objection at the hearing.


             Claimant later raised the absence of the investigative information with
the Board, not as a hearsay objection, but as the basis for his remand request. He
argued the record was incomplete and more information was needed on the question
of whether Claimant made a medication error. The Board denied the remand request
because it found Claimant admitted his mistake, thereby obviating any need for a
remand. Thus, the Board relied on Claimant’s admission of the medication error,
not on Employer’s purported hearsay testimony.


             The record contains substantial evidence supporting the Board’s
determination that Claimant admitted his medication error. He expressly admitted
it in his initial Department questionnaire. C.R., Item No. 2 (Claimant Questionnaire)
at 1. Further, at the hearing before the referee, Employer’s representative testified
Claimant told her he forgot the medication and he was sorry. C.R., N.T. at 13.
Claimant’s own testimony was equivocal. First, he stated he did not give the
medication, id. at 16; later, he stated he did give it, id. at 17; finally, he said he did
not remember, id. at 19. The Board resolved the conflicting testimony and issues of
credibility in Employer’s favor, as it was entitled to do. We will not disturb the
Board’s findings of fact. See Ductmate Indus. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338 (Pa. Cmwlth. 2008).




                                            6
                              C. Willful Misconduct
             Lastly, Claimant argues the Board erred in finding that he committed
willful misconduct. We reject this argument.


             “Willful misconduct” for purposes of UC benefits eligibility, is: (1)
wanton and willful disregard of the employer’s interest; (2) deliberate violation of
rules; (3) disregard of standards of behavior an employer rightfully expects; or, (4)
negligence manifesting culpability, wrongful intent, evil design, or intentional and
substantial disregard for the employer’s interests or the employee’s duties and
obligations. Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964
A.2d 970 (Pa. Cmwlth. 2009) (en banc). Whether specific conduct constitutes
willful misconduct is a question of law, which is reviewable by this Court. Id.


             The employer has the burden of proving willful misconduct. Id. If the
misconduct consists of violating a rule, the employer must show that the rule existed,
the employee was aware of the rule, and the employee violated the rule. Id.


             In this case, Claimant’s responses to the initial Department
questionnaire were sufficient to sustain Employer’s burden. Claimant admitted: (1)
he was discharged for a rule violation; (2) the rule violation was a medication error;
(3) he was or should have been aware of the rule; (4) a prior warning was given; and,
(5) the violation required discharge or suspension. C.R., Item No. 2 (Claimant
Questionnaire) at 1. Moreover, Employer provided ample corroborating testimony
and documentary evidence at the hearing. The Board was entitled to credit that
evidence.



                                          7
             Claimant signed the medication administration record stating he gave
the medication when he did not.       The Board inferred from that conduct that
Claimant’s conduct was deliberate. This Court examines the evidence in the light
most favorable to Employer as the party that prevailed before the Board, giving
Employer the benefit of any inferences that can logically and reasonably be drawn
from the evidence. Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., Bur. of Emp’r
Tax Operations, 892 A.2d 781 (Pa. 2006). We conclude the Board’s inference of
willful misconduct, based on Claimant’s conscious act of signing a false medication
record, could logically and reasonably be drawn from the evidence in this case.


             Claimant also argues that Employer admitted there was no willful
misconduct because it stated in its questionnaire response that the reason for the
discharge was unsatisfactory performance rather than willful misconduct. However,
Employer also stated in that same response that Claimant signed a record stating that
he gave medication when he did not. Moreover, Employer’s characterization of
Claimant’s conduct in the questionnaire response was not binding on the Board,
which was free to find willful misconduct based on the evidence. See McDonough
v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1231 C.D. 2011, filed
February 24, 2012), 2012 WL 8678944 (unreported) (questionnaire responses by
employer in telephone interview, answering “no” on whether there was misconduct,
did not prevent a finding of willful misconduct); Williams v. Unemployment Comp.
Bd. of Review (Pa. Cmwlth., No. 390 C.D. 2009, No. 391 C.D. 2009, filed October
15, 2009), 2009 WL 9102298 (unreported) (if employer’s questionnaire responses




                                         8
differ from other evidence, the Board is free to give more weight to the other
evidence).3


               Accordingly, the Board did not err in concluding that Claimant
committed willful misconduct.


                                      IV. Conclusion
               Based on the foregoing, we affirm the Board’s decision.




                                            ROBERT SIMPSON, Judge




      3
          We find the reasoning of these unpublished cases persuasive. 210 Pa. Code §69.414(a).


                                               9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry K. Johnson,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 1841 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER

           AND NOW, this 19th day of January, 2018, the decision of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
