           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abigail Ashton,                                 :
                               Petitioner       :
                                                :    No. 1890 C.D. 2016
                v.                              :    Submitted: April 13, 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 SIMPSON1                               FILED: November 28, 2017


                Abigail Ashton (Claimant), representing herself, petitions for review
from an order of the Unemployment Compensation Board of Review (Board)
denying reconsideration of its order affirming a referee’s decision deeming her
ineligible for unemployment compensation (UC) benefits under both Sections
402(b) and 401(d) of the Unemployment Compensation Law (Law).2 Claimant’s
petition for review was untimely as to the Board’s decision on the merits, so only
the Board’s denial of reconsideration is before us. Claimant presented no argument
as to how the Board abused its discretion in denying reconsideration. Thus, we are
constrained to affirm.




       1
           Reassigned to the author on October 18, 2017.
       2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b) (relating to voluntary quit), and 43 P.S. §801(d)(1) (relating to availability for work).
                                    I. Background
             Claimant worked for AG Administrators, Inc. (Employer) as a customer
service representative from June 2011, until her last day of work in April 2016.
Claimant suffered a neck injury in an off-duty car accident in 2014. Employer was
aware of Claimant’s medical condition and was accommodating. In April 2016, her
condition worsened such that she could not move without pain or drive to work. At
that time, Claimant was absent from the office for several weeks, and received a paid
leave of absence for medical reasons.


             Claimant filed for UC benefits, which the local service center denied
pursuant to Section 401(d) of the Law, 43 P.S. §801(d)(1). Claimant appealed.


             After Claimant filed for UC benefits, Employer advised her by letter that
she was required to return to work by a specific date. Claimant did not return to work.


             On August 16, 2016, a referee held a hearing where Claimant testified
on her own behalf. Employer did not appear. During the hearing, Claimant confirmed
her physician did not release her to return to work because a physical therapist had not
yet assessed her abilities. Specifically, she testified as follows:

                R: Who -- when did your physician release you?
                C: Released me?

                R: To work.
                C: During this time I wasn’t released.

                R: Has he released you yet?



                                            2
C: No. I have to now -- the last time I saw him --
actually I just start physical therapy. I can go back to
work at this time but…

R: When did -- when did he release you?
C: I was just there on the 11th I think it was.

R: When did he -- I need a note that says as of this day
you can work in this capacity.
C: That I don’t have with me but I can certainly get.

R: When did he release you?
C: My appointment was on the 8/10 and I do apologize
but without me knowing what information or questions
you’re going to ask me I don’t -- I can’t provide what
you need. I apologize.

R: The first issue is whether you’re able and available
for suitable work. That was identified on the Notice of
Hearing. So on August 10th did he release you full duty?
C: Yes, I am released to go back to work.

R: So between April 29 and August 10 what, if any,
work could you perform
C: I could work from home.

R: And he put that in writing?
C: My doctor?

R: Yes.
C: No, I don’t -- I don’t have anything in writing at this
point.

                           ***

R: So then when you saw him as of August 10 what
were the -- what, if any, restrictions did he put on you?
C: Other than just taking it easy, no lifting…

R: But he said you can work?

                           3
                C: Correct.

                R: And why didn’t you bring a note showing that you
                were released as of August 10?
                C: Because he officially can’t say unless they do an
                assessment, physical assessment of everything of what
                I physically can do.

                R: And who -- who does that assessment?
                C: The physical therapist.

                R: And when is that occurring?
                C: He just gave me the okay to get the physical therapy
                started. They never said I was not able to work. What
                it was that due to my condition, of course, as I
                mentioned, and medication I was under, it was in
                everybody’s best interest that I not drive, I not perform
                the way I normally perform putting again myself at risk
                at driving or any other you know any other driver or
                pedestrians.

                R: Okay. And when is that assessment scheduled for?
                C: I just received the paperwork so I have to schedule
                everything.

Referee’s Hr’g, 8/16/16, Notes of Testimony (N.T.) at 6-7, 8-9 (emphasis added).
Thus, at the hearing, Claimant admitted she did not have anything in writing from
her doctor releasing her to work or confirming her ability to work at home.


             As of the date of the hearing, August 16, 2016, Claimant knew she
needed “a note that says as of this day you can work in this capacity.” Id. at 6.
Although Claimant supplemented the record with e-mails she sent to Employer later
that day, none of them confirmed her ability to return to work or specified her physical
restrictions. Certified Record (C.R.), Item No. 10.



                                           4
               The day after the hearing, the referee found Claimant ineligible for UC
benefits pursuant to Sections 402(b) and 401(d)(1) of the Law, 43 P.S. §§802(b),
801(d)(1). The referee made the following relevant findings:

               10. On June 30, 2016, [Employer] informed [Claimant] she was
               required to return to work by July 15, 2016.

               11. [Claimant] provided [Employer] with a doctor’s note dated
               June 29, 2016, indicating she could not return to work until
               August 12, 2016.[3]
               12. [Claimant] did not present any documentation beyond [the
               doctor’s note] to indicate what if any restrictions are on her
               ability to work as of August 12, 2016.

Referee’s Dec., 8/17/16, Finding of Fact (F.F.) Nos. 10-12 (emphasis added). In her
discussion, the referee explained that Claimant testified she must undergo an
assessment by a physical therapist in order to determine what if any restrictions are
on her ability to work. Referee’s Dec. at 3. The referee also stated: “The Claimant
remains ineligible for benefits until such time as the Claimant provides proof, such as
a release from a physician to the Department showing that the Claimant is able to
work.” Referee’s Dec. at 3 (emphasis added).


               A week later, Claimant appealed to the Board, and asked for a remand
hearing. Although she “request[ed] an opportunity to show the necessary paperwork
stating that I am able to work since what I had was not sufficient,” C.R. at Item No.
12 (Petition for Appeal), she did not attach or describe an existing release from a
physician showing that she was able to work.


       3
          In its entirety, the handwritten, signed note stated: “Please excuse [Claimant] from work
until 8/12/16 so she can undergo a medical treatment. If you have any questions please do not hesitate
to contact us.” Referee’s Hr’g Tr., Ex. 1.

                                                  5
             After acknowledging the request for a remand hearing, the Board
affirmed the referee, adopting her findings of fact and conclusions. The Board’s
decision included written instructions for requesting reconsideration.            After
explaining the time within which to request reconsideration, the instructions state:

             Reconsideration will be granted only under very limited
             circumstances, for ‘good cause.’ The Board, in most
             cases, cannot revisit its previous credibility
             determinations. Also, the Board will not accept additional
             evidence, unless the party could not have presented the
             evidence at an earlier stage.

Id. at 2 (emphasis added).

             About a week later, on September 28, 2016, Claimant requested
reconsideration. C.R., Item No. 15. Although she asked for “the opportunity to
supply you with a note from my doctor stating I am able to return to work,” she again
did not attach or even describe an existing release from a physician showing that she
was able to work. Id. at 1. Nor did she explain why such a release was not previously
available, consistent with the written instructions. Id. Instead, she indicated that she
had an appointment with her treating doctor on October 5, 2016. Id.


             On October 4, 2016, more than six weeks after the hearing, Claimant
sent an e-mail to the Board. C.R., Item No. 17, at 1. She attached a note dated
September 28, 2016, from “The PENN Pain Medicine Center,” which stated:

             This is to clarify that the above named patient is under our
             professional care. She is currently being seen by the
             PENN Pain Medicine Center, under the care of Dr.
             Badiola. She had a procedure to reduce her neck pain back
             in July. She has recovered sufficiently to return to her
             work in customer service.


                                           6
Id. at 3. Unlike all the past communications from medical providers that Claimant
submitted, this note was unsigned, and it did not identify the author. Id. Claimant did
not explain why the unsigned note was not previously available. Id. at 1.


             Ultimately, the Board denied Claimant’s request for reconsideration.
Claimant filed a timely petition for review from the order denying reconsideration.


                                   II. Discussion
             On appeal, Claimant argues the Board erred in affirming the referee
when she submitted additional evidence, post-hearing, regarding her medical
condition and her ability to return to work. She contends the Board erred in not
considering the additional evidence. She also asserts she made reasonable efforts to
preserve her employment by maintaining consistent communication with Employer
regarding her medical condition.


             Because Claimant did not timely appeal the Board’s merits decision,
only the Board’s decision denying reconsideration is before us. Thus, our review is
limited to whether the Board abused its discretion in denying reconsideration. Ensle
v. Unemployment Comp. Bd. of Review, 740 A.2d 775 (Pa. Cmwlth. 1999).


             An abuse of discretion occurs if the Board decision demonstrates bad
faith, fraud, capricious action or abuse of power. Id. The denial of a request for
reconsideration may be reversed only for a clear abuse of discretion. Bushofsky v.
Unemployment Comp. Bd. of Review, 626 A.2d 687 (Pa. Cmwlth. 1993).




                                          7
               Pursuant to Board regulations, an aggrieved party may seek
reconsideration in order to submit additional evidence. 34 Pa. Code §101.111.
However, such requests “will be granted only for good cause in the interest of justice
without prejudice to any party.” 34 Pa. Code §101.111(b) (emphasis added); see
Ensle. “In determining whether ‘good cause’ exists, the Board must consider whether
the party requesting reconsideration has presented new evidence or changed
circumstances or whether it failed to consider relevant law.” Ensle, 740 A.2d at 779.


               Legally, in her uncounseled brief, Claimant does not raise any
recognizable argument regarding the denial of reconsideration.4 Instead, Claimant’s
argument pertains to the merits, specifically that she made reasonable effort to
preserve employment by taking necessary steps as stated in Section 402(b) of the
Law. Pet’r’s Br. at 9. She writes: “The burden is on the claimant to show that, prior
to quitting continuing employment, he/she made every effort to maintain the
employer/employee relationship.” Id.


               Here, the absence of argument directed to the denial of reconsideration
is not a technical quibble. Notwithstanding waiver, Claimant did not identify any
abuse of discretion by the Board to warrant reversal.                   See e.g., Gottardy v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1493 C.D. 2014, filed
February 20, 2015) (unreported), 2015 WL 5161411 (affirming Board’s denial of
reconsideration where claimant failed to brief abuse of discretion issue).




       4
         Failure to address matters in an appellate brief results in waiver. Com. v. Spotz, 716 A.2d
580 (Pa. 1998).

                                                 8
             Moreover, Claimant still does not explain why she could not have
presented her evidence at an earlier stage, consistent with the instructions for
requesting reconsideration. This lack of explanation is especially stark in light of
Claimant’s assertion at the hearing that she had already been released to work and
she “can certainly get a note” from her doctor. N.T. at 6; see Dep’t of Auditor Gen.
v. Unemployment Comp. Bd. of Review, 484 A.2d 829 (Pa. Cmwlth. 1984)
(reconsideration properly denied when new evidence was available at time of
hearing and record contained no explanation for lengthy delay).


             Because Claimant does not offer any explanation for the delay between
the August 16 hearing and the submission of the unsigned note by e-mail on October
4, she did not establish good cause for reconsideration. Georgia-Pacific Corp. v.
Unemployment Comp. Bd. of Review, 630 A.2d 948, 953 (Pa. Cmwlth 1993)
(explaining “no good cause to grant rehearing where the requesting party did not act
to protect its own interests by presenting crucial evidence at the initial hearing and
asserted no reason for its failure to make the ‘new’ evidence available at that time”)
(citations omitted); see generally, Leung on Behalf of House of Lee, Inc. v. Pa. Pub.
Util. Comm’n, 582 A.2d 719 (Pa. Cmwlth. 1990) (party seeking consideration of new
evidence needs to show evidence could not be obtained with reasonable diligence).


             In the face of Claimant’s failure to explain why her evidence could not
have been presented at an earlier stage, and her delay in submitting it, we discern no
clear abuse of discretion in the Board’s order denying reconsideration.




                                          9
                                    III. Conclusion
             For the foregoing reasons, we affirm the Board’s order denying
reconsideration. Accordingly, the Board’s order on the merits stands.




                                        ROBERT SIMPSON, Judge



Senior Judge Pellegrini dissents.




                                          10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abigail Ashton,                       :
                       Petitioner     :
                                      :   No. 1890 C.D. 2016
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER

            AND NOW, this 28th day of November, 2017, the order of the
Unemployment Compensation Board of Review denying reconsideration is hereby
AFFIRMED.




                                     ROBERT SIMPSON, Judge
