Feinberg v. Unemployment Compensation Board of Review

FRIEDMAN, Judge,

dissenting.

I respectfully dissent.

Here, the majority states that the only support for the Board’s findings consist of the testimony of the Claimant, testimony which was contradicted. The majority concedes that the Board was free to believe Claimant and dismiss the contradictory testimony of Employer and Employer’s witnesses on credibility grounds. However, the majority feels that Claimant’s testimony was also contradicted by her own written statement which “flatly and decisively states the opposite of what she asserts in her testimony.” The majority reasons that this self contradiction so neutralizes Claimant’s testimony that it prevents a reasonable mind from concluding that it could possibly constitute substantial evidence upon which to base a finding. I disagree.

First, I do not agree that Claimant’s interview. statement describing the conditions existing at the time she left work is flatly and decisively opposite to her claim that she was fired from her position. Although the two may seem to conflict, Claimant attempts to clarify the circumstances under which the interview statement was written, explaining that she told the employment officer that she had been fired and the employment officer asked her to record her conditions at work prior to her leaving and being fired. If believed, Claimant’s testimony provides a possible, even if not compelling, explanation of the language in her interview statement. Although in the view of the majority, Claimant’s statement was “contrived” and “unbelievable,” I feel that such credibility appraisals are outside our province. On appellate review, we are limited to determining whether the facts as found by the Board are supported by. substantial evidence; we cannot reweigh evidence or indulge in our own credibility determinations. Clearly, the Board believed Claimant’s version of events. As the majority concludes, the only way in which the Board could have reversed the referee, is by believing Claimant’s explanation of why she listed job grievances as reasons for leaving on her interview form. Even if we would have reached a different conclusion, the Board, as fact finder, was entitled to accept Claimant’s testimony in this regard.

Even acknowledging that the Board is the sole arbiter of credibility in unemployment compensation cases, the majority contends that the Board’s credibility assessment is invalid here because that determination and the findings of fact to which it gives rise depend upon the uncorroborated hearsay statements of the employment officer. The majority is correct in stating that hearsay evidence admitted without objection may support a finding only when corroborated by *687competent record evidence; however, the majority is mistaken when it states that “a thorough review of the record reveals no trace of such corroborating evidence.”

On November 4, 1992, her last day of work, Claimant filed a request for unemployment benefits with the Bureau. At that time, a Bureau officer interviewed Claimant and had her fill out the summary interview form. Subsequently, the Bureau sent an official notice to Dr. Feinberg to inform him of Claimant’s application for unemployment compensation. This notice, entitled Employer’s Notice of Application, appears at page 5a of the record. The second line of this notice provides a blank space under the caption “The claimant has indicated the reason for separation or partial unemployment as:.” This space contains a single typewritten word — “FIRED.” (Emphasis added.) I believe that this evidence corroborates Claimant’s testimony that she did, in fact, tell her Bureau interviewer that she had been fired by Dr. Feinberg, and this notice form together with Claimant’s testimony provide evidence that a reasonable mind might accept as adequate to support the Board’s conclusion. Accordingly, I would affirm.