             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald James Hurlbert,                           :
                 Petitioner                      :
                                                 :
       v.                                        : No. 1101 C.D. 2019
                                                 : SUBMITTED: January 17, 2020
Unemployment Compensation                        :
Board of Review,                                 :
                 Respondent                      :

BEFORE:          HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                   FILED: March 13, 2020

       Donald James Hurlbert (Claimant) petitions for review, pro se, of the July 19,
2019 Order of the Unemployment Compensation Board of Review (Board)
affirming the decision of a Referee to deny Claimant’s request to backdate four
unemployment compensation (UC) claim weeks under Section 401(c) of the
Unemployment Compensation Law (Law)1 and 34 Pa. Code § 65.43a.2 Because we

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(c). Section 401(c) of the Law provides that UC “shall be payable to any employe who is or
becomes unemployed, and who . . . [h]as made a valid application for benefits with respect to the
benefit year for which [UC] is claimed and has made a claim for [UC] in the proper manner and
on the form prescribed by the [D]epartment [of Labor and Industry (Department)].” 43 P.S. §
801(c).

       2
           This regulation states in relevant part:

       (a) For a week in which a claimant was employed less than his full-time work, the
       claimant shall file a claim for [UC] not later than the last day of the second week
       after the employer paid wages for that week. If the earliest week for which a claim
       for [UC] is filed in accordance with this subsection precedes the week in which the
conclude that Claimant failed to satisfy the requirements for backdating claim
weeks, we affirm the Board’s Order.

                                            Background
       On February 3, 2019, Claimant filed an application for UC benefits. Bd.’s
Finding of Fact (F.F.) No. 1. Claimant filed timely claims for UC benefits for claim
weeks ending February 9, 2019 through March 2, 2019. Id. No. 2.
       On April 19, 2019, Claimant filed with the Department a request to backdate
claim weeks ending March 9, 2019, March 16, 2019, March 23, 2019, and March
30, 2019. Id. No. 3; Record (R.) Item No. 2.3 Claimant’s reason for requesting
backdating was that he could not file his bi-weekly claims because of health issues

       claimant’s application for benefits is filed or deemed filed, as determined without
       regard to this subsection, the Department will deem the application to be filed
       during the earliest week for which a claim is filed.

                                                  ....

       (f) If a claimant fails to file a claim for [UC] within the time allowed in subsection
       (a) . . . due to the claimant’s illness or injury, the time for filing the claim is extended
       until the last day of the second week after the incapacity ends.

       (g) The Department will deem an application for benefits to be filed no more than
       2 weeks prior to the week in which it actually is filed if the claimant did not file the
       application earlier because an employer erroneously advised the claimant that the
       claimant would be recalled to work within 1 week.

34 Pa. Code § 65.43a(a), (f), and (g).

       3
           On the backdating request form, Claimant stated:

       I made it very clear with [the Department] that [I] could not take it. Mentally it was
       too taxing. You may not have been trying[,] but you [g]uys are messing with my
       head. There was a guy that no longer works there that committed fraud against me.

R. Item No. 2 at 2.



                                                    2
and because his employer at that time, First Student, Inc. (Employer), erroneously
informed him that he could return to work with a doctor’s note. Bd.’s F.F. No. 4.
      The local UC Service Center denied Claimant’s request to backdate claim
weeks ending March 9, 2019, March 16, 2019, March 23, 2019, and March 30, 2019
under Section 401(c) of the Law and 34 Pa. Code § 65.43a. The Service Center
found that Claimant’s proffered reason for requesting backdating was that he could
not file his bi-weekly claims “due to a personal health issue.”               Notice of
Determination, 2/3/19, at 1.       The Service Center determined, however, that
“Claimant’s reason for requesting backdating did not meet the requirements under
which backdating for a week or weeks of [UC] benefits could be allowed.” Id.
      Claimant timely appealed to the Referee. The Referee held a hearing on June
5, 2019, at which Claimant, acting pro se, testified regarding the circumstances of
his backdating request.4 Following the hearing, the Referee affirmed the Service
Center’s decision, concluding:

      [The r]egulation [at 34 Pa. Code § 65.43a] defines conditions under
      which a claim for a week of [UC] benefits may be backdated. The
      regulation allows up to two weeks of backdating if the claimant fails to
      file a claim for [UC benefits] due to the claimant’s illness or injury.
      The time for filing the claim was extended until the last day of the
      second week after the incapacity in [sic]. [C]laimant testified that he
      has mental health issues that led to his failure to file bi[-]weekly claims
      in a timely manner.         [C]laimant did not provide competent
      documentation to prove that he has mental health issues. In this case,
      the [R]eferee finds that [C]laimant has not met the burden of proving
      that circumstances existed that would allow for backdating under [34
      Pa. Code § 65.43a].

Ref.’s Order, 6/13/19, at 4.

      4
       Employer was not notified of the hearing, presumably because Claimant’s separation
from employment was not at issue. It was purely a backdating issue.

                                           3
       Claimant timely appealed to the Board, which adopted and incorporated the
Referee’s findings of fact and conclusions of law. The Board also made the
following additional findings based on the evidence of record:

       [C]laimant argues that [E]mployer also “advised me erroneously that I
       would have been recalled to work, when the weather improved . . . .”
       At the hearing, [C]laimant testified that [E]mployer told him he could
       come back to work if he could get another doctor’s note, [and C]laimant
       did [so] the following week, but [E]mployer did not accept [the note].
       [C]laimant has not proven that [E]mployer advised [C]laimant he
       would be guaranteed to be recalled to work within [one] week.

Bd.’s Order, 7/19/19, at 1 (quoting Claimant’s Petition for Appeal) (emphasis
added). Therefore, the Board affirmed the Referee’s Order. Claimant now petitions
this Court for review.5
                                           Analysis
       On appeal, Claimant asserts that the Board erred in concluding he was not
entitled to the backdating of the requested claim weeks pursuant to 34 Pa. Code §
65.43a. In cases involving late-filed claims, the general rule is that a claimant who
files late is ineligible for UC benefits, unless he or she was misled by UC officials.
Snipas v. Unemployment Comp. Bd. of Review, 401 A.2d 888, 889 (Pa. Cmwlth.
1979). Our Court has recognized that “[t]he weekly reporting requirements are
necessary so that contact between the claimant and the job center is constant and
regular, whether it be by mail claims or physical reporting, so as to enable the
unemployed to secure employment promptly if a satisfactory job becomes



       5
          Our scope of review is limited to determining whether the necessary factual findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.


                                                4
available.” Menalis v. Unemployment Comp. Bd. of Review, 712 A.2d 804, 805 (Pa.
Cmwlth. 1998).
       The Department has promulgated regulations setting forth the circumstances
under which the backdating of claim weeks is permitted. The regulation at 34 Pa.
Code § 65.43a(a) provides that generally, “[f]or a week in which a claimant was
employed less than his full time work, the claimant shall file a claim for [UC] not
later than the last day of the second week after the employer paid wages for that
week.” 34 Pa. Code § 65.43a(a).                However, this regulation provides several
exceptions that allow backdating in limited circumstances. See 34 Pa. Code §
65.43a(b)-(h).     The claimant bears the burden of proving that his or her UC
application satisfies the requirements for backdating. Egreczky v. Unemployment
Comp. Bd. of Review, 183 A.3d 1102, 1106 (Pa. Cmwlth. 2017).
       Before this Court, Claimant asserts that he satisfied the exception in
subsection (g) of 34 Pa. Code § 65.43a, which states:

       The Department will deem an application for benefits to be filed no
       more than 2 weeks prior to the week in which it actually is filed if the
       claimant did not file the application earlier because an employer
       erroneously advised the claimant that the claimant would be recalled
       to work within 1 week.

34 Pa. Code § 65.43a(g) (emphasis added).6 In essence, the record shows that
Claimant was sent home from work for failing to wear snow cleats while on the job
as required by Employer. Claimant maintained that the snow cleats caused him pain.
Employer told Claimant that he could return to work with a doctor’s note excusing


       6
          Before the Referee and the Board, Claimant also invoked the exception in subsection (f)
of 34 Pa. Code § 65.43a (relating to illness or injury), claiming that he was entitled to backdating
due to health issues. However, Claimant has abandoned that exception in his appeal to this Court.
See Pet. for Review at 1 n.1; Claimant’s Br. at 3.


                                                 5
him from wearing the requisite footwear. Claimant contends that he provided two
doctor’s notes, but Employer did not accept either note.
      At the hearing before the Referee, Claimant entered into evidence several
documents related to his filing of a union grievance in March 2019, stemming from
Claimant’s violation of Employer’s policy regarding snow cleats. On the grievance
form, dated March 9, 2019, Claimant’s union representative stated, “[Claimant]
presented doctor excuse regarding use of snow/ice cleats. [Claimant] was told
excuse not acceptable and sent home until further notice.” Notes of Testimony
(N.T.), 6/5/19, Ex. C-4. In a March 19, 2019 letter to the union representative
denying the grievance, Employer’s location manager explained:

      [Claimant] believes that because [he] provided a medical note that [he]
      would be exempted from wearing required safety equipment.

      All First Student locations require shoe cleats when the weather and
      ground conditions have snow and ice. The number one cause of injury
      and death in our [c]ompany is slipping/falling. This is a condition of
      employment. [Employer] has the right to establish reasonable work
      rules. This rule is solely to protect employees from injury/harm.

      [Claimant] presented a note because the shoe grips cause him “pain”.
      We have offered [Claimant] to wear different shoe cleats. He had
      originally declined this option but during our meeting he appeared to
      be interested in trying new ones. To date we have not heard from him.

Id., Ex. C-2.
      Claimant also testified before the Referee that Employer “told me [during] the
second week of March [2019] that I could come back [to work] if I could get a second
– another doctor’s note. I did so the following week, but they did not accept that




                                         6
[note].” N.T., 6/5/19, at 2.7 He further testified that Employer’s “[m]anager said
that if I get a second doctor’s note, I could come back to work, which I did the
following week, but I still was not allowed to come back to work for like another
month or something after that.” Id. at 3. Claimant contends that this evidence
established that Employer erroneously informed him that he would be recalled to
work within one week so as to entitle him to backdating under 34 Pa. Code §
65.43a(g). We find this argument to be without merit.
       We rejected a similar claim in Beck v. Unemployment Compensation Board
of Review (Pa. Cmwlth., No. 459 C.D. 2013, filed September 11, 2013).8 In Beck,
the claimant argued that her employer erroneously advised her that she would be
recalled to work within one week after she provided a doctor’s note stating that she
could perform her job safely. Slip op. at 9. The “[e]mployer, however, was not
satisfied with this note, and asked her to see [the e]mployer’s doctor as well.” Id. at
2. In concluding that the claimant was not entitled to backdating, we stated:

       [The c]laimant . . . did not present evidence during the hearing before
       the Referee to support her contention on appeal to this Court that [her
       e]mployer promised her that she could return to work within one week
       of providing a doctor’s note clearing her to return to her job. At the
       hearing, [the c]laimant testified that she believed her job would be
       waiting for her after she provided [her e]mployer with a doctor’s note
       stating that she could safely perform her job duties. But [the c]laimant
       did not testify that [the e]mployer advised her that she could return to



       7
        The second doctor’s note, dated March 20, 2019, stated, “[Claimant] has no acute issues
that would prevent him from wearing these shoes.” N.T., 6/5/19, at 3 & Ex. C-1.

       8
         We cite Beck for its persuasive authority, as it is the only case we have found specifically
applying the exception in 34 Pa. Code § 65.43a(g). See Cmwlth. Ct. Internal Operating Procedure
§ 414(a), 210 Pa. Code § 69.414(a) (stating that an unreported panel decision of this Court, issued
after January 15, 2008, may be cited for its persuasive value only).


                                                 7
       work within one week. Thus, the Board did not err in not backdating
       [the c]laimant’s application under [34 Pa. Code §] 65.43a(g).

Id. at 9 (emphasis added).
       Likewise, in this case, Claimant offered no testimony that Employer
specifically advised him that he could return to work within one week, as required
by 34 Pa. Code § 65.43a(g). Rather, Claimant’s testimony merely established that
Employer informed him that he needed a doctor’s note to return to work. N.T.,
6/5/19, at 2. As such, the Board correctly determined that “[C]laimant has not
proven that [E]mployer advised [C]laimant he would be guaranteed to be recalled to
work within [one] week.” Bd.’s Order, 7/19/19, at 1.
       Furthermore, in his appeal to the Board, Claimant asserted, for the first time,
that Employer originally told him that he “would have been recalled to work[] when
the weather improved,” but then “my boss added on March 14[, 2019] that I would
not have been allowed back to work without a doctor’s note.” R. Item No. 9.
Claimant stated that the weather improved one week later, but Employer did not
recall him to work until mid-April 2019. Id. Thus, by Claimant’s own admission,
Employer did not tell Claimant that he would be recalled to work within one week,
but rather “when the weather improved.” Bd.’s Order, 7/19/19, at 1 (emphasis
added).9 Therefore, we agree with the Board that Claimant failed to satisfy the
exception in 34 Pa. Code § 65.43a(g).
                                         Conclusion
       We conclude, based on the evidence of record, that Claimant failed to prove
that he was entitled to the backdating of claim weeks ending March 9, 2019, March


       9
          At the Referee’s hearing, Claimant offered no testimony or evidence that the weather had
actually improved within one week of Employer’s alleged statement, nor did the Board make such
a finding.


                                                8
16, 2019, March 23, 2019, and March 30, 2019. Accordingly, we affirm the Board’s
Order.



                                    __________________________________
                                    ELLEN CEISLER, Judge




                                       9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald James Hurlbert,           :
                 Petitioner      :
                                 :
     v.                          : No. 1101 C.D. 2019
                                 :
Unemployment Compensation        :
Board of Review,                 :
                 Respondent      :


                               ORDER


     AND NOW, this 13th day of March, 2020, the July 19, 2019 Order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.


                                 __________________________________
                                 ELLEN CEISLER, Judge
