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 (Cl ai mant) 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 den y Claimant’ s request to backdate four

unemployment compensation (UC) claim weeks under Section 401(c) of the

Unemp loyment Comp ensation Law (Law) 1 and 34 Pa. Code § 65.43 a. 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

claima nt shall file a claim for [UC] not later than the last day of the second week after the emp loyer 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 the2

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 Febru ary 9, 2019 through March 2, 2019. Id. No. 2

. On Apr il 19, 2019, Claimant filed with the Department a request to b ackdat e

claim weeks ending M ar ch 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 w as 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 clai m 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 ver y cl ear with [the Department] that [I] could not take it. Mentally it was too taxing. You ma y 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 2.3

and because his e mployer 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

.

T he local UC Service Center denied Claimant’ s reques t to backdate claim

weeks ending M arch 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 .” Not ice of

Determination , 2/3/19, at 1. The Service Center determined, however, that

“ Claimant ’ s reason for requesting backdating di d not meet the requirements unde r
which backdating for a week or wee ks of [UC] benefits could be allowed.” Id.

Claimant timel y appealed to the Referee . The Referee held a h earing 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, concludi ng :

[The r] egulation [at 34 Pa. Code § 65.43a ] defines conditions under
which a claim for a wee k 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 cl aims 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 bac kdating 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.4

Claimant timely appealed to the Board , which adopted and i n c orp orated the

Referee’s f

indings of f

act and c onclusi o ns of l aw

. 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 backdat ing of the requested claim weeks pursuant to 34 Pa. Code §

65.43a

. In cases involving late

- fil ed 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 C omp. B d. 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. §

704.5

available. ” Menalis v. Unemployment C omp. B d. 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

. T he regulation at 34 Pa.

Code § 65.43a(a) provides that g enerally, “[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, th is reg ulation provides several

exceptions that allow backdating in limited circumstances. See 34 Pa. Code §

65.43a(b)

- ( h ). The claimant bears the burden of pro ving that his or her UC

application satisfies the requirements for backdating. Egreczky v. U nemployment

C omp. B d. of Review , 183 A.3d 1102, 1106 (Pa. Cmwlth. 2017).

Before this Court , Claimant a sserts 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, t he 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 cause d 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 is sues

. However, Claimant has abandoned that exception in his appeal to this Court.

See Pet. for Review at 1 n.1; Claimant’s Br. at 3.6

him from wearing the requisite footwear. Claimant contends that he provided two

doctor’s notes, but Employer did not accept either note

.
At the he aring before the Referee

, Claimant entered into evidence several

documents relat ed to his filing of a union grievance in March 2019

, stemming from

Claimant’s violation of Employer’s policy regarding snow cleats

. On the g rievance

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 r

ule 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 inter ested 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 that7

[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

follo wing 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 rec alled to

work within one we ek 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. U nemployment C

omp ensation B oard

of Revie w (Pa. Cmwlth., No. 459 C.D. 2013 , filed September 11, 2013)

. 8 In Beck

,
the claimant argued that her employer e rroneously 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. S lip 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 j ob 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 foun d spe cifically 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 decisi on of this C ourt

, issued after January 15, 2008, may be cited for its pers uasive value only).8

work within one week. Thu s, 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, t he Board correctly determined that “[C]la imant 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

, i n his appeal to the Board, Claimant a sserted , 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 improv ed one week later

, but E mployer did not

recall him to work until mid

- April 2019

. Id. Thus, b y 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 t he Board that Claimant failed to satisfy the

excepti on 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 backdat ing of claim weeks ending M arch 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

.9

16, 2019, March 23, 2019, and March 30, 2019

. Accordingly, we affirm the Board’s

Order.

__________________________________ ELLEN CEISLER , J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald James Hurlbert, :

Petitioner :

:

v. : No. 1101 C.D. 2019

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 13 th day of March, 20 20, the July 19, 2019 O rder of the

Unemployment Compensation Board of Review is hereby AFFIRMED.

__________________________________ ELLEN CEISLER , J udge