No. 843 C.D. 2012
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Janelle Green (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's denial of benefits under Section 401(d)(1) of the Unemployment Compensation Law (Law).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. For the purposes of this appeal, the claimant was last employed as a part-time (20 hours per week) bartender by Double D Neighborhood Bar and Grill from 4/1/10 to 7/25/11 at an hourly rate of $7.25 plus gratuities.
2. During the course of claimant's employment she witnessed another bartender drinking behind the bar while on duty and engaged in drug activity with customers.
3. Claimant reported the bartender's actions to one of the owners who disclosed to the offending . . . bartender the source of his information.
4. The offending bartender confronted claimant in the restroom getting into her face and blocking her exit.
5. The offending bartender who has a history of combative behavior subsequently got into a physical altercation with yet another bartender, attacking her, all of which was caught on video tape.
6. Although claimant was told the offending bartender was terminated, she appeared on 7/21/11 on the same shift as the claimant after which the claimant requested not to be scheduled on the same shift out of fear for her safety.
7. Although the employer promised to, 'work it out' the claimant was not scheduled again.
Referee's Decision, January 3, 2012, (Decision), Findings of Fact Nos. 1-7 at 1.
The referee determined:
In this matter, the claimant has most definitely established a necessitous and compelling reason to voluntarily quit her job as a bartender at Double D Neighborhood Bar and Grill. The claimant has testified credibly to the presence of a violent person in the workplace with whom employer has failed to deal. Further, claimant was scheduled on the same shift in spite of employer's being aware of threats being made against the claimant by the co-worker. When claimant became a whistle blower about the co-worker's drinking and drug activity while on duty, the claimant became a target for the offending bartender's rage.
Claimant, however, has not demonstrated by compelling testimony nor documentation why a medical doctor or psychiatrist or anyone other then [sic] a social worker that she is able and available for work and realistically
attached to the labor market due to her medical/psychiatric problems.
Decision at 2.
The Board affirmed and stated, "[t]he claimant was found ineligible for the week at issue under Section 401(d)(1) of the Law in companion appeal B-11-09-H-A469." Board Opinion, April 26, 2012, at 1.
Claimant contends that the Board committed an error of law when it determined Claimant was ineligible for benefits under Section 401(d)(1) of the Law, 43 P.S. §801(d)(1), on the basis that she was not able and available to work where the findings of fact and notes of testimony do not support the conclusion of law and where Double D Neighborhood Bar and Grill (Employer) did not rebut the presumption of availability.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Section 401(d)(1) of the Law, 43 P.S. §801(d)(1), provides:
Compensation shall be payable to any employe who is or becomes unemployed and who
. . . .
(d)(1) Is able to work and available for suitable work: Provided, That no otherwise eligible claimant shall be denied benefits for any week because he is in training with the approval of the secretary nor shall such individual be denied benefits with respect to any week in which he is in training with the approval of the secretary by reason of the application of the provisions of this
subsection relating to availability for work or the provisions of section 402(a) of this act relating to failure to apply for or a refusal to accept suitable work.
Whether a claimant is able and available for suitable work is a question of fact unless the restriction on job availability is so untenable and illustrative of a lack of good faith so as to disqualify a claimant as a matter of law. Proof that a claimant has registered with the unemployment compensation authorities creates a presumption of availability for work. The presumption may be rebutted by evidence that a claimant's physical condition limits the type of work a claimant is able to accept or by evidence that he has voluntarily placed other restrictions on the type of job he is willing to accept. If a claimant is able to do some type of work even though he is disabled and there is a reasonable opportunity to secure such a position, then the claimant is attached to the labor force. Hower and Son v. Unemployment Compensation Board of Review, 509 A.2d 1383 (Pa. Cmwlth. 1986).
Generally, the determination of whether a claimant is available for work is a question of fact for the Board, which this Court is bound to affirm if the Board's determination of the factual issue is supported by substantial evidence. Pennsylvania Electric Company v. Unemployment Compensation Board of Review, 450 A.2d 779 (Pa. Cmwlth. 1982).
Here, Claimant asserts that she established the presumption that she was realistically attached to the labor market when she registered with the unemployment authorities. Claimant further asserts that there is nothing in the record to support the determinations by the referee and the Board that she was unavailable for work. Claimant argues that the referee did not make a finding of fact supported by substantial evidence that Employer rebutted the presumption that Claimant was able and available for work before finding that Claimant failed to demonstrate "by compelling testimony nor documentation why a medical doctor or psychiatrist or anyone other than a social worker that she is able and available for work and realistically attached to the labor market due to her medical/psychiatric problems." Decision at 2. Claimant further adds that there was no testimony from a social worker in this case.
A review of the record confirms Claimant's position. Claimant registered with the unemployment authorities which created the presumption that she was able and available for work. One of the owners of Employer, Nestor Dalaperas (Dalaperas), testified before the referee. Dalaperas did not provide any testimony regarding Claimant's availability for work. Dalaperas testified regarding Claimant quitting and her alleged reasons for doing so. He did not testify or present any evidence concerning Claimant's availability for work.
Clearly, Employer did not rebut the presumption that Claimant was able and available for work. Further, the referee's conclusion regarding the testimony of a social worker is unsupported by substantial evidence because no social worker testified in this matter. The Board adopted the referee's findings and conclusions and added that in a companion case Claimant was found to be unavailable.
Before this Court, the Board moved to enlarge the record to "include the decision in appeal no. B-11-09-H-A469, Board decision no. B-535579, issued on April 26, 2012, in which the Board found Claimant ineligible under Section 401(d)(1) of the Law . . . for the identical weeks at issue involved in this appeal to this Court." Motion to Enlarge, August 14, 2012, Paragraph No. 1 at 1.
By order dated September 4, 2012, this Court denied the motion. The Board tacitly admits that there is no support for its determination in the record. The Board may only consider evidence that is part of the record. Lock Haven University of Pennsylvania v. Unemployment Compensation Board of Review, 559 A.2d 1015 (Pa. Cmwlth. 1989). Further, this Court may not consider evidence attached to a brief which was not part of the record below. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24 (Pa. Cmwlth. 1995). The Board's determination was unsupported by substantial evidence.
Apparently, Claimant's employer in the other appeal did provide evidence that Claimant was unavailable for work and ineligible for benefits under Section 401(d)(1), 43 P.S. §801(d)(1). The Board argues that Claimant's appeal collaterally attacks the order in appeal number B-11-09-H-A469. However, Claimant remains ineligible for benefits with respect to the employer in that appeal. That case was not appealed to this Court. --------
Accordingly, this Court reverses.
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 28th day of November, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed.
BERNARD L. McGINLEY, Judge