Bortz v. Workmen's Compensation Appeal Board

DOYLE, Judge,

dissenting.

I respectfully dissent. I believe the majority has misperceived the concept of a claimant’s “fault” which is a superseding cause of a claimant’s increased loss of earning power. See Pieper v. Ametek-Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990) (a claimant is entitled to reinstatement where his/her increased loss of earning power is through no fault of his/her own). I agree with the majority that the Workers’ Compensation Act1 and the Unemployment Compensation Law2 serve different purposes and are procedurally different. However, those distinctions are not relevant for the determination of the narrow issue of whether a claimant’s conduct rises to the level of willful misconduct as defined for purposes of unemployment compensation, and that level of misbehavior which will preclude a claimant from receiving workers’ compensation benefits. This level of conduct is well-defined in the area of unemployment compensation as:

(1) the wanton and wilful disregard of the employer’s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifest culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer’s interests or the employee’s duties and obligations.

Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Commonwealth Ct. 90, 97, 309 A.2d 165, 168-69 (1973). I do not believe that a different standard applies to workers’ compensation.

First, the majority misstates the standard where a claimant will be considered to be “at fault” for his increased loss of earning power as a standard of “unsatisfactory job performance.” This concept was explicitly rejected by this Court’s recent decision in Hertz Penske Truck Leasing Co. v. Workmen’s Compensation Appeal Board (Bowers), 168 Pa.Commonwealth Ct. 657, 651 A.2d 1145 (1994):

The relevant inquiry before us is not whether Claimant’s separation from employment was due simply to his own inability, because his performance did not measure up to Employer’s new standards, but *561rather, whether there was an element of fault on Claimant’s part which removed him from the workforce.... In other words, in order to prevail, Employer was required to prove either that Claimant’s termination was voluntary, or that he was dismissed by Employer for good cause. ... What has never been considered as a standard in any previous case is a claimant’s discharge due simply to his own inability to measure up to his employer’s new requirements; mere inability or ordinary negligence is not the standard imposed under Section 418 of the [Workers’ Compensation] Act.

Id. at-, 651 A.2d at 1148-49 (emphasis omitted). The key finding is whether the claimant was discharged for cause; if he was, benefits are denied. SEPTA v. Workmen’s Compensation Appeal Board (Pointer), 145 Pa.Commonwealth Ct. 539, 604 A.2d 315 (1992).

This Court’s opinion in Christopher v. Workmen’s Compensation Appeal Board (Dravo Corp.), 124 Pa.Commonwealth Ct. 562, 556 A.2d 544 (1989), relied on by the majority, does not articulate a different standard. Although the Court in that case described the claimant’s behavior as “unsatisfactory job performance,” the reason the claimant’s performance was unsatisfactory was due to his misconduct: non-performance, bad attitude, and problems with expenses. Id. at 564, 556 A.2d at 545. Simply stated, while the term willful misconduct may always be described as “unsatisfactory job performance,” all unsatisfactory job performances do not necessarily rise to the level of willful misconduct. We have never held that an employer’s discharge of an employee merely for an unsatisfactory job performance precludes a claimant’s entitlement to workers’ compensation benefits. Hertz; see also Buckley v. Workmen’s Compensation Appeal Board (Corbo’s AM PM Mini Market), 109 Pa. Commonwealth Ct. 64, 530 A.2d 530 (1987); Woodard v. Workmen’s Compensation Appeal Board, 49 Pa.Commonwealth Ct. 558, 411 A.2d 890 (1980) (claimant’s loss of earnings was due to his dismissal for excessive absenteeism therefore a suspension was properly entered); Workmen’s Compensation Appeal Board v. John W. Galbreath & Co., 20 Pa.Commonwealth Ct. 283, 341 A.2d 541 (1975) (excessive absenteeism precluded reinstatement).3

The employer’s burden to prove willful misconduct in the area of unemployment compensation is similar. For example, in Herndon v. Unemployment Compensation Board of Review, 115 Pa.Commonwealth Ct. 419, 540 A.2d 633 (1988), the claimant was dismissed for “unsatisfactory performance, due to repeated errors.” The employer testified that “whenever Claimant was told of a mistake she had made, she would apologize and correct the mistake.” Id. at 421, 540 A.2d at 634. The claimant did not exhibit an unwillingness to work to the best of her ability; her “under-performance” was simply a lack of ability. We therefore held that mere incompetence alone will not support a finding of willful misconduct. See also Norman Ashton Klinger & Associates, P.C. v. Unemployment Compensation Board of Review, 127 Pa.Commonwealth Ct. 293, 561 A.2d 841 (1989) (a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct); Colonial Taxi and Paratransit Services, Inc. v. Unemployment Compensation Board of Review, 104 Pa.Commonwealth Ct. 264, 521 A.2d 536 (1987) (negligence is not misconduct unless claimant’s actions demonstrate manifest culpability, wrongful intent, evil design or intentional and substantial disregard for the employer’s interests). Under our analysis in Hertz Penske similar conduct that is merely incompetent or negligent would also not preclude a claimant from receiving workers’ compensation benefits.

Second, the fact that the Workers’ Compensation Act and the Unemployment Compensation Law serve different purposes and *562are proceduraUy different is also not disposi-tive. It has often been held that an issue in one proceeding will be precluded from relit-igation in a second unrelated proceeding.

For example, this Court has found that an employer who has admitted in proceedings under the Heart and Lung Act4 that a claimant cannot return to his time of injury job, cannot argue in a workers’ compensation proceeding that the claimant can perform his time of injury job during the same period of time. Kohut v. Workmen’s Compensation Appeal Board (Township of Forward), 153 Pa.Commonwealth Ct. 382, 621 A.2d 1101, petition for allowance of appeal denied, 535 Pa. 650, 633 A.2d 154 (1993).

In Christopher v. Council of Plymouth Township, 160 Pa.Commonwealth Ct. 670, 635 A.2d 749 (1993), in an action against the employer for permanent disability benefits under a collective bargaining agreement, the claimant was precluded from relitigating the issue of whether he was completely recovered from his work related injury where a workers’ compensation referee in a previous decision had specifically found that he had completely recovered. Moreover, we also held that the township personnel review board’s determination, based on medical testimony, that the claimant had engaged in malingering by exaggerating his injury to avoid performance of his job was similarly preclusive.

In yet another instance, the Superior Court held that the Unemployment Compensation Board of Review’s determination that claimants were discharged for willful misconduct foreclosed the argument in a subsequent contract action that they were wrongfully discharged. Frederick v. American Hardware Supply Co., 384 Pa.Superior Ct. 72, 557 A.2d 779, petition for allowance of appeal denied, 523 Pa. 636, 565 A.2d 445 (1989).5

Accordingly, I would find that the unemployment compensation referee’s conclusion that Claimant did not engage in willful misconduct precludes Employer from reasserting the argument before a workers’ compensation referee, and would reverse the Board.

. Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1066.

. Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914.

. I would note that there are other ways that a claimant can be considered to lose earning power through his own "fault” other than by dismissal for willful misconduct, such as voluntarily removing oneself from the employment market without a necessitous and compelling reason. Huber v. Workmen's Compensation Appeal Board (Liberty Mutual Insurance Co.), 154 Pa.Commonwealth Ct. 423, 623 A.2d 962, petition for allowance of appeal denied, 535 Pa. 635, 631 A.2d 1007 (1993).

. Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.

. The majority questions the validity of this holding because of the Supreme Court's decision in Odgers v. Unemployment Compensation Board of Review, 514 Pa. 378, 525 A.2d 359 (1987). In that case the Supreme Court determined that the legal standards defining "work stoppage” and "strike" under the Unemployment Compensation Law and the Public Employee Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1011.101-.2301, were totally distinct, and, in fact determined different issues. I do not believe the court's conclusion would change the outcome of Frederick.