          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Denise M. Minter,                              :
                              Petitioner       :
                                               :
               v.                              :   No. 2054 C.D. 2016
                                               :   Submitted: May 19, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: August 29, 2017

               Denise M. Minter (Claimant) petitions for review from an order of the
Unemployment Compensation Board of Review (Board) that denied her
unemployment compensation (UC) benefits on the ground she was not able or
available for suitable work under Section 401(d)(1) of the UC Law (Law),1 43 P.S.
§801(d)(1). Claimant primarily argues the Board erred in denying her UC benefits
where she was able and available to work in some capacity despite the fact that she
could not return to the job she held most recently. Upon review, we affirm.


               Claimant worked for UPMC Presbyterian Shadyside (Employer) as a
full-time anesthesia technician. After her separation from employment, Claimant
applied for UC benefits, which were initially denied. Claimant appealed. A
hearing ensued before a referee.

      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
             At the referee’s hearing, Claimant represented herself and testified on
her own behalf. Additionally, Employer presented the testimony of James Pfahl,
Disability Management Coordinator for UPMC Work Partners, and Lance
Maloney, a senior human resources consultant for Employer. The referee also
admitted numerous documentary exhibits without objection by either party.


             After the hearing, the referee issued a decision in which she made the
following relevant findings. Claimant worked for Employer from September 1998
until October 30, 2015 at a final rate of pay of $18.71 per hour.


             In November 2015, Claimant took off of work because of a surgical
procedure.   Approximately three weeks after the surgery, Claimant developed
other medical problems. Claimant consulted a neurologist and received vestibular
therapy. Employer granted Claimant’s request for a leave of absence through July
20, 2016.


             In July 2016, Employer’s disability management coordinator agreed
to contact Claimant’s physician for an updated assessment of her ability to return
to work. On July 19, 2016, Claimant’s physician completed a release to return to
work form that indicated Claimant was not able to work with or without
restrictions. By letter faxed to Employer on July 20, 2016, Claimant’s physician
indicated Claimant was not able to return to work, with or without restrictions.


             Employer     then   advised       Claimant   that   she   exhausted   her
accommodated time away from work and unless Employer received written



                                           2
documentation regarding Claimant’s ability to work by the close of business on
August 3, 2016, it would consider Claimant separated from employment for health
reasons. As of the referee’s September 2016 hearing, Claimant’s physician did not
upgrade her return to work status.


            Based on these findings, the referee determined Claimant was not
disqualified from receiving UC benefits under Section 402(b) of the Law (relating
to voluntary quit) because both parties agreed Claimant advised Employer of her
medical condition and her resulting inability to work.       However, the referee
determined Claimant was ineligible for benefits under Section 401(d)(1) of the
Law.   To that end, the referee explained, Claimant’s physician’s most recent
assessment of Claimant’s condition was that she was not able and available for
work. Thus, the referee determined Claimant was ineligible for UC benefits.
Claimant appealed.


            Ultimately, the Board affirmed. In so doing, it explained:

                    After considering the entire record in this matter,
            the [Board] concludes the determination made by the
            Referee is proper under the [Law]. However, the Board
            reaches this conclusion under different grounds than
            those relied on by the Referee with respect to Section
            402(b) of the Law. Based on [E]mployer’s testimony
            and documentary evidence, specifically [E]mployer’s
            July 20, 2016, letter, the Board concludes [E]mployer
            initiated [C]laimant’s separation, and therefore, her
            separation was not voluntary. As such, [C]laimant
            cannot be ineligible under Section 402(b) of the Law.

            With respect to Section 401(d)(1) of the Law, the Board
            stresses that whether a claimant is able or available for
            work is a week-to-week test. Although [C]laimant is


                                        3
              ineligible under Section 401(d)(1) of the Law for the
              weeks at issue, her eligibility for subsequent weeks may
              change if there is a change in circumstances.
              Accordingly, should [C]laimant become able and
              available for subsequent weeks not already ruled on
              by the [s]ervice [c]enter, she should provide such
              information to the [s]ervice [c]enter.

                    Otherwise, the Board adopts and incorporates the
              Referee’s findings and remaining conclusions ….

Bd. Op., 11/28/16, at 1 (emphasis in original). Claimant now appeals to this Court.


              On appeal,2 Claimant first argues the Board erred in denying her UC
benefits under Section 401(d)(1) of the Law because she was able and available to
return to work in some capacity, even though she could not return to the job she
performed most recently for Employer. Claimant asserts her physician indicated
she was able to work as long as she was sitting for most of the workday and not
lifting over 10 pounds. She contends that, although these restrictions rendered her
unable to perform her job as an anesthesia technician, she was permitted to
perform numerous jobs in general and, more specifically, various sedentary jobs,
which she previously performed for Employer.


              In UC cases, the Board is the ultimate fact-finder.                  Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
As such, issues of credibility and the evidentiary weight given to conflicting
testimony are within the Board’s exclusive province. Id. The Board may reject the

       2
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed or whether constitutional rights
were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010)
(en banc).



                                              4
testimony of the claimant if it concludes her testimony is not worthy of belief.
Adams v. Unemployment Comp. Bd. of Review, 373 A.2d 1383 (Pa. Cmwlth.
1977). Further, this Court must view the record in the light most favorable to the
party prevailing before the Board.       Sanders v. Unemployment Comp. Bd. of
Review, 739 A.2d 616 (Pa. Cmwlth. 1999). We must give that party the benefit of
all reasonable inferences that can be drawn from the evidence. Id.


              In addition, “[t]he fact that [a party] may have produced witnesses
who gave a different version of the events, or that [the party] might view the
testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Thus, it is irrelevant
whether the record contains substantial evidence to support findings other than
those made by the Board; the critical inquiry is whether there is substantial
evidence to support the findings actually made. Wise v. Unemployment Comp.
Bd. of Review, 111 A.3d 1256 (Pa. Cmwlth. 2015); Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).


              Section   401(d)(1)   of   the   Law   provides, in    relevant   part:
“Compensation shall be payable to any employe who is or becomes unemployed
and who … [i]s able to work and available for suitable work ….”             43 P.S.
§801(d)(1).    The burden of proving availability for suitable work is on the
claimant. Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237 (Pa.
Cmwlth. 2011). “Generally, the determination of whether or not a claimant is
available for work as required by Section 401(d) of the [Law] is a question of fact



                                          5
for the Board, which this Court is bound to affirm if the Board’s resolution of that
factual issue is supported by substantial evidence.”             Pa. Elec. Co. v.
Unemployment Comp. Bd. of Review, 450 A.2d 779, 781 (Pa. Cmwlth. 1982).


             An unemployed worker who registers for UC is presumed to be able
and available for work. Rohde. This presumption is rebuttable by evidence that a
claimant’s physical condition limits the type of work that she is available to accept.
Id. If the presumption of availability is rebutted, the burden shifts to the claimant
to produce evidence that she is able to do some type of work and that there is a
reasonable opportunity for securing such work. Id. “The law does not require that
the claimant be available for full-time work, for permanent work, for his most
recent work, or for his customary job, so long as the claimant is ready, willing, and
able to accept some suitable work.” Id. at 243 (citations omitted).


             Here, the Board adopted the following pertinent findings made by the
referee (with emphasis added):

             2. In November 2015, [C]laimant was off due to having
             surgery.

             3. Approximately three weeks after her surgical
             procedure, [C]laimant developed other medical problems.

             4. [C]laimant consulted a neurologist and received
             vestibular therapy.

             5. [C]laimant request[ed] and was granted accommodated
             time away from work through July 20, 2016.

             6. After conversation with [C]laimant, [E]mployer’s
             disability management coordinator agreed to contact



                                          6
             [C]laimant[’s] physician for an updated assessment of her
             ability to return to work.
             7. On or around July 19, 2016, [C]laimant[’s] physician
             completed a release to return to work form stating that
             [C]laimant was not able to work with or without
             restrictions.

             8. By letter faxed to [E]mployer on July 20, 2016,
             [C]laimant[’s] physician said she was not able to return
             to work, with or without restrictions.

             9. By letter dated July 20, 2016, [E]mployer advised
             [C]laimant that she had exhausted her accommodated
             time away from work, and unless [E]mployer received
             written documentation about her ability to work by close
             of business on August 3, 2016, [C]laimant, [sic] would
             be separated from employment due to health reasons.

             10. As of the date of the hearing [(September 29, 2016)],
             [C]laimant[’s] physician has not upgraded her return-to-
             work status.

Referee’s Dec., 10/4/16, Findings of Fact (F.F.) Nos. 2-10.       The Board also
adopted the referee’s determination that “[C]laimant’s physician’s most recent
assessment of her condition is that she is not able and available for work.”
Referee’s Dec. at 3.


             Claimant asserts the Board erred in denying her UC benefits where
she was capable of working in some capacity, despite not being able to return to
her pre-injury job with Employer. However, our review of the record supports the
Board’s findings to the contrary.


             To that end, Claimant’s physician completed a July 19, 2016 “Release
to Return to Work Form” (submitted at the referee’s hearing by Claimant and


                                        7
Employer as a joint exhibit), which indicated Claimant was not able to return to
work “with” or “without” restrictions. F.F. No. 7; Referee’s Hr’g, 9/29/16, Joint
Ex. 1 (emphasis added). Further, in response to an inquiry on a questionnaire sent
by Employer, Claimant’s physician again indicated Claimant was not able to work
with or without restrictions. F.F. No. 8; Referee’s Hr’g, ER Ex. 3. Further, in
response to a request for an estimated time frame that Claimant would need to
remain off work because of her medical condition and when she could possibly
return to work with accommodations, Claimant’s physician stated he would “re-
evaluate [Claimant] on 10/31/2016.” Referee’s Hr’g, ER Ex. 3. Additionally,
based on the information received from Claimant’s physician, James Pfahl,
Disability Coordinator at UPMC Work Partners, testified: “We had asked
[Claimant’s physician] is [Claimant] able to return to work with or without
restrictions, and he said no.” Referee’s Hr’g, Notes of Testimony, 9/29/16, at 7.


            Nevertheless, Claimant points out that in a different section of the
“Release to Return to Work Form,” her physician indicated she was capable of
performing sedentary work. While Claimant is correct that her physician indicated
that she was capable of performing sedentary work, both in the top “Work Status”
section of the “Release to Return to Work Form,” and in response to Employer’s
questionnaire, Claimant’s physician indicated Claimant could not return to work
with or without restrictions.   Referee’s Hr’g, Joint Ex. 1; ER Ex. 3.        Thus,
Claimant’s evidence was, at best, ambiguous. As fact-finder, the Board was not
obligated to find that Claimant was capable of performing sedentary work in light
of this evidence. Further, although at the referee’s hearing Claimant attempted to
explain that her physician was referring to her position with Employer when he



                                         8
indicated she could not return to work with or without restrictions, the Board did
not credit Claimant’s testimony.


             In short, in light of the lack of clear evidence to support Claimant’s
assertion that she was capable of returning to sedentary work, no error is apparent
in the Board’s determination that Claimant did not prove she was able and
available for suitable work under Section 401(d)(1) of the Law.


             Moreover, Claimant’s reliance on Rohde and Pifer v. Unemployment
Compensation Board of Review, 639 A.2d 1293 (Pa. Cmwlth. 1994), is misplaced.
In Rohde, despite suffering from a medical condition that impacted the hours he
could work, the claimant established he was, in fact, able and available for suitable
work. Indeed, the claimant there actually secured other employment after his
separation from the employer. In Pifer, the claimant established the presumption
that he was able and available for suitable work, and the employer failed to
produce any admissible evidence to rebut that presumption. Although the Board in
that case relied on a physician’s certification to support its determination that the
claimant was unable and unavailable for work, this Court determined such reliance
was improper where the referee excluded that document from the record as
inadmissible hearsay and there was no other record evidence indicating the
claimant was unable to work.


             Unlike in Rohde and Pifer, the Board here determined that Employer
rebutted the presumption that Claimant was able and available for suitable work,
and Claimant did not meet her burden of proving she was able to perform any type



                                         9
of work where her physician did not release her to return to work with or without
restrictions. As explained in greater detail above, the record supports the Board’s
determination here.


             Claimant also maintains that, based on this Court’s decision in St.
Clair Hospital v. Unemployment Compensation Board of Review, 151 A.3d 401
(Pa. Cmwlth. 2017) (en banc), Employer was obligated to provide Claimant with
an alternative position to accommodate her medical condition where Claimant
informed Employer of that condition. However, Claimant’s argument fails to
account for the Board’s supported determination that she was not able and
available for suitable work where her physician twice communicated to Employer
that Claimant could not return to work with or without restrictions.


             In addition, Claimant contends, assuming her physician’s statement on
the “Release to Return to Work Form” that she could perform sedentary work is
insufficient to show she was, in fact, able and available, she is still entitled to UC
benefits because the delay in obtaining her medical release was through no fault of
her own.    In particular, Claimant asserts her physician’s office cancelled her
appointment scheduled for July 2016 and rescheduled it for October 31, 2016.
Claimant argues this rescheduling, which, in turn, delayed her ability to obtain a
release to return to work, was beyond her control, and she repeatedly attempted to
obtain an earlier appointment. Claimant also contends she notified Employer of
the change in appointment date and explained the circumstances were not within
her control. Having attempted to preserve her employment, Claimant maintains,
she should be awarded UC benefits.



                                         10
             Despite Claimant’s assertions, the fact remains that the Board’s
supported determination reveals Claimant was not able and available for suitable
work during the period at issue. Further, where the Law does not warrant a ruling
in Claimant’s favor, this Court has no equitable power to ignore the Law. Sturni v.
Unemployment Comp. Bd. of Review, 625 A.2d 727 (Pa. Cmwlth. 1993).


             Finally, Claimant argues, because her doctor cancelled her scheduled
July 2016 appointment, the only first-hand evidence regarding whether Claimant
was capable of returning to work as of that time was her own testimony. Because
Claimant testified she felt she would be cleared to return to her pre-injury position
as of July 2016, Claimant argues, she established she was capable of performing
her pre-injury job. Contrary to this assertion, our review of the transcript of the
referee’s hearing reveals Claimant did not testify she was capable of performing
her pre-injury job as of July 2016. And, in any event, the Board did not credit
Claimant’s testimony. As such, this assertion fails.

             Based on the foregoing, we affirm.




                                       ROBERT SIMPSON, Judge




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Denise M. Minter,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 2054 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER

           AND NOW, this 29th day of August, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
