              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raquel A. Nickey,                          :
                     Petitioner            :
                                           :
              v.                           :
                                           :
Unemployment Compensation                  :
Board of Review,                           :      No. 681 C.D. 2019
                 Respondent                :      Submitted: October 25, 2019


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: January 6, 2020

              Raquel A. Nickey (Claimant) petitions this Court, pro se,1 for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) April 24, 2019
order affirming as modified the Referee’s decision and denying Claimant UC benefits
under Section 401(d)(1) of the UC Law (Law).2,3 There are three issues before this
Court: (1) whether Claimant was properly disqualified from receiving UC benefits
under Section 401(d)(1) of the Law; (2) whether the Referee properly sustained
UPMC Pinnacle’s (Employer) hearsay objection; and (3) whether Claimant was
afforded a full and fair hearing before the Referee. After review, we affirm.


       1
          Claimant was unrepresented throughout the proceedings, with the exception of her appeal
from the Referee’s decision to the UCBR, at which time an attorney filed her appeal with, and a
brief on her behalf to, the UCBR.
        2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1) (referring to ability and availability to work).
        3
          The Referee denied Claimant UC benefits under both Sections 401(d)(1) and 402(e) of the
Law, 43 P.S. § 802(e) (referring to willful misconduct).
             Employer employed Claimant as a full-time mammography technician
from July 1, 1989 to August 14, 2018. Claimant worked 32 hours per week. On June
15, 2016, Claimant suffered a work injury, but continued working with restrictions
approved by her supervisor until August 14, 2018. Claimant’s restrictions included
working only four hours per day, three days per week.         On August 14, 2018,
Employer’s Employee Benefit Counselor Tenna Snyder (Snyder) became aware that
Claimant was working with restrictions and met with Claimant.        At that time,
Claimant indicated that she was having trouble concentrating, was tired, and could
not sleep at night.
             Snyder became concerned about Claimant’s ability to perform her job
effectively and placed Claimant on a leave of absence. Snyder gave Claimant a
medical certification form, an essential job functions form, and a work capacities
evaluation form to be completed by Claimant’s healthcare provider by September 25,
2018. Employer did not receive the necessary documents by September 25, 2018.
Snyder gave Claimant an extension until October 3, 2018 to submit the
documentation. Employer received the medical certification and work capacities
evaluation forms from Claimant’s healthcare provider; however, based on the
information provided, Employer was unable to authorize a leave of absence for
Claimant beyond August 6, 2018.
             On October 9, 2018, Snyder sent Claimant a letter stating that she had
until October 17, 2018 to submit an essential job functions form completed by her
healthcare provider. The October 9, 2018 letter also advised Claimant that she had
until October 17, 2018 to supply the end date on her request for leave of absence
form. Subsequently, Claimant informed Snyder that she had a doctor’s appointment
on November 6, 2018. On October 15, 2018, Snyder provided Claimant with another
essential job functions form to be completed by her doctor.


                                          2
              On November 7, 2018, Claimant notified Snyder that she was unable to
work in any capacity due to extreme pain, and that her doctors were not going to
complete the essential job functions form. On November 9, 2018, Employer sent
Claimant a letter advising of her employment termination based on her inability to
perform her essential job functions and her communication that she had no definitive
return-to-work date.
              Claimant applied for UC benefits. On December 3, 2018, the Altoona
UC Service Center determined that Claimant was eligible for UC benefits under
Section 402(e) of the Law, but ineligible under Section 401(d)(1) of the Law.
Claimant appealed and a Referee held a hearing. On February 26, 2019, the Referee
affirmed the UC Service Center’s determination as modified and denied Claimant UC
benefits under Sections 402(e) and 401(d)(1) of the Law. Claimant appealed to the
UCBR. On April 24, 2019, the UCBR affirmed the Referee’s decision as modified
and denied Claimant UC benefits under only Section 401(d)(1) of the Law. Claimant
appealed to this Court.4
              Claimant first argues that the UCBR erred by concluding that Claimant
was ineligible for UC benefits under Section 401(d)(1) of the Law. Specifically,
Claimant contends Employer was not credible because Claimant was able and
available for work within her restrictions.
              This Court has explained:

              Section 401(d)(1) of the Law provides, in part, that
              ‘[c]ompensation shall be payable to any employe[] who is
              or becomes unemployed and who . . . [] [i]s able to work
              and available for suitable work.’ The burden of proving

       4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 3
             availability for suitable work is on the claimant. An
             unemployed worker who registers for unemployment is
             presumed to be able and available for work. This
             presumption is rebuttable by evidence that a claimant’s
             physical condition limits the type of work [s]he is
             available to accept or that [s]he has voluntarily placed
             other restrictions on the type of job [s]he is willing to
             accept. If the presumption of availability is rebutted, the
             burden shifts to the claimant to produce evidence that
             [s]he is able to do some type of work and that there is a
             reasonable opportunity for securing such work.

Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237, 242-43 (Pa. Cmwlth.
2011) (citations omitted; emphasis added).
             “[T]he determination of whether a claimant is available for work as
required by Section 401(d)[(1)] of the Law is a question of fact for the [UCBR.]”
Craig v. Unemployment Comp. Bd. of Review, 442 A.2d 400, 401 (Pa. Cmwlth. 1982)
(quoting Goodwin v. Unemployment Comp. Bd. of Review, 378 A.2d 1308, 1310 (Pa.
Cmwlth. 1977)). Further, “the [UCBR] is the ultimate fact-finder in [UC] matters
and is empowered to resolve all conflicts in evidence, witness credibility, and weight
accorded the evidence. . . . Where substantial evidence supports the [UCBR’s]
findings, they are conclusive on appeal.” Ductmate Indus., Inc. v. Unemployment
Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Here, the UCBR
deemed Employer’s witness to be credible and resolved conflicts in testimony in
Employer’s favor, as it was entitled to do.
             At the Referee hearing, Snyder testified:

             E[mployer’s] L[awyer] What happened after November 6th?
             E[mployer’s] W[itness] I did not hear back from [Claimant]
             November 6th, but November 7th, [Claimant] did call me.
             We had a conversation. She told me that her physicians
             were not going to complete the essential functions form.
             The doctor was recommending physical therapy for her and
             that she was in extreme pain and would not be able to
             work at all at that time.

                                              4
            E[mployer’s] L[awyer] And that was the most recent
            information you’ve had regarding her current status,
            correct?
            E[mployer’s] W[itness] Correct.

Notes of Testimony, February 5, 2019 (N.T.) at 12 (emphasis added).
            Moreover, on Claimant’s Internet Initial Claims form, in answer to the
question: “Are there any conditions under which you may not be able and
available to work during the next year?” Claimant responded “Y[es.]”. Certified
Record (C.R.) Item 2 at 1 (emphasis added). Further, Claimant answered “Y[es]” to
the question: “Are there any restrictions and/or limitations (health/physical, travel
distance, wages, hours able to work, etc[.]) with regard to the type of work you are
seeking or willing to accept[.]” C.R. Item 2 at 4. Claimant described the restrictions
and/or limitations as: “Medical health issues.        Currently in physical therapy,
[f]ibromyalgia, chronic pain[.]” Id.
            Finally, under “Additional Information” on the Internet Initial Claims
form, Claimant declared:

            Are you able to work? N[o.]
            If no, please explain.     Not at this time due to health
            reasons[.]
            Are you available for work? N[o.]
            If no, please explain. Not at this time due to health issues[.]
            Are you voluntarily restricting your work hours or type of
            work? N[o.]
            Is there any additional information that you feel may affect
            your eligibility for unemployment compensation?
            FIBROMYALGIA[,] SPONDYLOSIS WITH RADICULOPATHY
            LUMBAR REGION[,] CHRONIC FATIGUE SYNDROME[,]
            HASHIMOTO THYROIDITIS AUTOIMMUNE[,] CENTRAL PAIN
            SYNDROME[,] THORACIC AND LUMBAR NEURITIS[,] IBS[,]
            SLEEP DISTURBANCES[,] MIGRAINES[,] JOINT SWELLING[,]
            OSTEOARTHRITIS[,] LEFT LUMBAR ANNULAR TEAR[,]
                                           5
              ANGULAR DISK BULGE[,] ADJUSTMENT DISORDER WITH
              MIXED ANXIETY AND DEPRESSION [AND] FIBROMYALGIA
              FOG[.]

C.R. Item 2 at 5 (emphasis added). Clearly, this evidence supports the UCBR’s
conclusion that Claimant was not able or available for work.                  Accordingly, the
UCBR’s determination that Claimant was not eligible for UC benefits under Section
401(d)(1) of the Law was based on substantial evidence.
              Claimant next contends that the Referee erred by sustaining Employer’s
hearsay objection to Claimant’s testimony with respect to what her supervisor told
her because her supervisor’s statements are an exception to the hearsay rule as an
opposing party’s statement under Section 803(25)(D) of the Pennsylvania Rules of
Evidence.5 Specifically, Claimant testified:

              E[mployer’s] L[awyer] Okay.             You got the termination
              letter, correct?
              C[laimant] Correct.
              E[mployer’s] L[awyer] You never reached out to [Snyder]
              with any documentation that said no, Employer, you’re
              wrong . . . [.]
              C[laimant] Yes, ma’am. I did.
              ....
              C[laimant] I did reach out. In fact, I talked to my
              department director who signed that termination letter,
              Elmar Toralses [(Toralses)], and told him that letter was
              untrue, that I did not agree with that. I’m sorry that he can’t
              confirm that, but yes, I did.
              E[mployer’s] L[awyer] You would have needed to have
              [Toralses] here. So I’m objecting to anything . . . [.]
       5
         Employer rejoins that Claimant waived this objection by not raising it before the Referee.
Although Claimant did not raise the argument before the Referee, she did raise it in her appeal to
the UCBR. Because Claimant was unrepresented at the hearing but was represented during her
appeal to the UCBR, out of an abundance of caution, this Court will address the argument.


                                                6
             R[eferee] And I will sustain.

N.T. at 20-21. Section 803(25) of the Pennsylvania Rules of Evidence provides, in
relevant part, that an opposing party’s statement is an exception to the hearsay rule
when: “The statement is offered against an opposing party and . . . (D) was made by
the party’s agent or employee on a matter within the scope of that relationship and
while it existed[.]” Pa.R.E. 803(25).
             Here, Claimant merely testified that she wished Toralses was at the
hearing to confirm that she protested her termination letter. There is no probative
value in that statement. Claimant never stated or attempted to state what Toralses
said. Thus, there was no statement by an opposing party to object to in the first
instance. Accordingly, whether the objection was properly sustained is of no moment
to the issues now before this Court.
             Lastly, Claimant asserts that the Referee was biased because she
accepted Employer’s testimony over Claimant’s testimony and, therefore, denied
Claimant the opportunity for a full and fair hearing before the Referee.
             This Court has explained:

             A [r]eferee will be found to have denied a fair hearing to an
             unrepresented party where the [r]eferee failed to ‘advise
             h[er] as to h[er] rights, aid h[er] in examining and cross-
             examining witnesses, and give h[er] every assistance
             compatible with the impartial discharge of [the tribunal’s]
             official duties.’ 34 Pa. Code § 101.21(a). This includes
             assisting pro se claimants in developing the facts necessary
             for a decision.

Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth.
2008).
             Here, a review of the record reveals that Claimant was provided notice
and was advised of her rights. The Hearing Notice mailed to Claimant delineated her
rights, including her right to subpoena witnesses. See Hearing Notice at 2. Further,

                                             7
the Referee advised Claimant of her rights when the hearing commenced. See N.T. at
2.   Finally, Claimant was afforded the opportunity to be heard throughout the
proceeding. Claimant testified on her own behalf and the Referee questioned her
regarding her employment separation.           Relative to the Referee’s credibility
determination, the Referee explained:

            [C]laimant contends she was able and available for work
            within her medical restrictions. [] [C]laimant’s conflicting
            testimony relating to this issue is not found credible. Based
            on information provided on [] [C]laimant’s [I]nternet
            [Initial Claims form], she apparently suffers from several
            medical ailments and she failed to provide any current
            medical documentation to support she had been released to
            work with or without restrictions during the week at issue.

Referee Dec. at 3. Accordingly, based upon this Court’s review of the record,
Claimant was afforded the process she was due and received a full and fair hearing.
            For all of the above reasons, the UCBR’s order is affirmed.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raquel A. Nickey,                   :
                    Petitioner      :
                                    :
            v.                      :
                                    :
Unemployment Compensation           :
Board of Review,                    :     No. 681 C.D. 2019
                 Respondent         :


                                   ORDER

            AND NOW, this 6th day of January, 2020, the Unemployment
Compensation Board of Review’s April 24, 2019 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
