Paolucci v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge. ANNE.E. COVEY.

I respectfully dissent. The Majority’s statement of the issue on page 1234 of its opinion was not raised either explicitly or implicitly by Claimant. Nor did Claimant raise the two issues the Majority sets forth on page 1238.

Moreover, I strenuously disagree with the Majority dramatically changing well-established precedent and imposing upon employers newly created requirements. Respectfully, this case is not one of first impression. The Unemployment Compensation Board of Review’s' (UCBR) findings of fact are supported by substantial evidence and the UCBR did not err as a matter of law. Each of these matters will be discussed below.

Majority’s Statement of the Issue

The Majority states: “In this case of first impression, we consider what happens when a disabled employee’s assertion of her rights under the Workers’ Compensation [ (WC) ] Act[] is construed by her employer as violating the standards of behavior it can reasonably expect of its employees.” 1 Majority Op. at 1234-35. The Majority’s statement of the issue'was not addressed by the UCBR nor did Claimant raise it in her Petition for Review or Brief.

Claimant’s Petition for Review is 1 page and 1 sentence on a second page and consists of 5 paragraphs. Claimant’s only objections contained therein are to the UCBR’s findings of fact 7 and 12, and -conclusion of law that Employer met its burden of establishing that Claimant was discharged for willful misconduct. This Court’s scope of review is limited to the “general statement of the objections to the order or other determination; and ... every subsidiary question fairly comprised therein[,]” contained in Claimant’s Petition for Review. Pa.R.A.P. 1513(d)(5)-(6).2 Failure to raise a claim in the petition for review waives the issue, thus we are prohibited from addressing it. Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95, 98 (Pa.Cmwlth.2011);

Claimant’s brief in the Statement of Questions Involved (Statement), lists the issues as follows:

1. Whether the [UCBR’s] finding of fact that [Claimant] did not respond to a job offer after July 11, 2011, given her manager’s -testimony that he was precluded from offering her a job after July *124411, 2011, is supported by. substantial evidence?
2. Whether the workers’ compensation litigation commenced by [Claimant’s] employer, and the jpartiesf] conduct of communicating through their attorneys, rises to the level of willful misconduct to justify a termination of employment?

Claimant Br.'at 4.

Claimant’s Statement does not correlate to the UCBR’s findings of fact. As listed on pages 1236,1237 and 1238 of the Majority Opinion, the UCBR made no finding concerning Employer’s job offer after July 11, 2011, nor did it find that Claimant’s manager testified he was precluded from offering Claimant a job after July 11, 2011 or that the parties had a conduct of communicating through their attorneys. “[The UCBR] is not required to address each and every allegation of a party in its findings, nor is it required, to explain why certain testimony has been rejected. The findings need only be sufficient to enable the Court to determine the questions and ensure the conclusions follow from the facts.” Balshy v. Pa. State Police, 988 A.2d 813, 835 (Pa.Cmwlth.2010), (citation omitted).,.

The findings of fact which include the July 11, 2011 date all relate to Claimant’s ability and availability to return to work.3 The only two findings that Claimant challenges as not being supported by substantial evidence are findings 7 and 12. Those findings state: “[E]mployer did send ■[Claimant letters and did make phone calls that were not returned when [E]m-ployer’s physician indicated that [Claimant could work.” UCBR Dec. at 1, Finding of Fact (FOF) 7. The UCBR also found that “[Claimant was discharged because she failed to contact [E]mployer when she became able to work.” UCBR Dec. at 2, FOF 12. Employer’s store manager Henry Wolfe (Wolfe) testified as follows:

ET [Employer’s representative] Mr. Wolfe, why would — why did the discharge take place on August 4, 2011, if you know?
EW [Wolfe] Yes, I do. It’s because we — several attempts that we made to talk to [Claimant] about positions that we had or work that we had available for her went unanswered. Other than a phone call with her attorney saying that she would not be available for any work with us and to proceed with giving any other communication directly to him.[4]
ET Okay. And that termination of August 4, 2011, did it include a stipulation that the Claimant could — would not be rehired by [Employer]?
EW Not at all. We had a position available for her and it’s just that we couldn’t get a hold of her to give her one.
*1245ET And did [Employer] offer [Claimant] any employment after, according to the Referee’s decision, her ability and availability for some kind of work after or as effective July 11, 2011?
EW She certainly could have. She was still employed at that point. So if she was available for work, she could have came [sic] into work. She was still employed with us at her rate — her rate of pay.
ET And what kind of work did you have available for [Claimant] as of July 11th or dates after that?
EW There were multiple positions we had available that we wanted to discuss with her, but our inability to discuss them with her precluded us to [sic] offer her those positions.
ET Okay. And was that the reason she was separated from [Employer] on August 4, [20]11? ,
EW It is.' ■

Notes of Testimony (N.T.), March 23, 2012 at 9-10 (double emphasis added).

In addition, the following exchange took place at that same hearing between Claimant’s attorney and Wolfe:

GL Do [sic] you ever receive correspondence personally from my office ...
EW Yes ...
CL ... and if you wish to talk to her, you could talk to me?
EWYes.
CL Then how could you say that you had an inability to speak to her if you talk [sic] to me?
EW Because you wouldn’t — because you wouldn’t be able to talk to us about her employment? [sic]
CL Why not? I represent her.in an employment matter.
EW That has nothing to do with her actual employment with-us.

Ñ.T., March 23, 2012 at 13-14.

“The [UCBR’s] findings of fact are conclusive if supported by substantial, evidence.” Geesey v. Unemployment Comp. Bd. of Review, 33 Pa.Cmwlth. 376, 381 A.2d 1343, 1344 (1978). “Substantial evidence is evidence .[that] a reasonable mind might accept as adequate to support a ' conclusion.” Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558, 564 (Pa.Cmwlth.2012) (quoting Wheelock Hatchery, Inc. v. Unemployment Comp. Bd. of Review, 167 Pa.Cmwlth. 343, 648 A.2d 103, 105 n. 3 (1994)). The law is clear that the UCBR is the ultimate finder of fact, and “questions of credibility and evi-dentiary weight ■.;. are matters for the factfinder, [UCBR], not the reviewing court.” Freedom Valley Fed. Savings & Loan Ass’n v. Unemployment Comp. Bd. of Review, 62 Pa.Cmwlth. 332, 436 A.2d 1054, 1055 (1981). Both findings of fact 7 and 12 are supported by Wolfe’s testimony which constitutes, substantial evidence and therefore those findings are conclusive.

Majority’s Legal Conclusion

The Majority concluded that “[t]he [UCBR’s] findings of fact do pot support its legal conclusion that Claimant violated a reasonable expectation of Employer and,, accordingly [it] reverse[d].” Majority Op. at 1235. Indeed, on the last page of. the opinion the Majority specifies the reasonable expectations as follows:

It was mot reasonable for Employer to expect Claimant to convey information already known by, .or related to, Employer in her workers’ compensation deposition. It;was not reasonable for Employer to expect Claimant to disregard her attorney’s instructions that he would be the point person in communications with Employer about her workers’ com*1246pensation. Finally, it was not reasonable for Employer to expect Claimant to report to work on July 12, 2011, as argued by the [UCBR].

Majority Op. at 1243.' However, the UCBR never made said legal conclusion. The UCBR correctly defined “willful misconduct as an act of wanton or willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard of the standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer’s interests or of the employee’s duties and obligations to the employer[.]”5 UCBR Dec. at 2-3. Based on this definition the UCBR concluded: “[E]mployer has met [its] burden [of establishing willful misconduct], [Claimant never made [E]mployer aware that she could return to work. Further, [Claimant did not respond to [E]m-ployer’s offer of work. Finally, [C]laim-ant’s attorney told [E]mployer to no longer contact [C]laimant.” Id. at 3. This Court’s appellate review is limited to the specific findings challenged on appeal. “Unchallenged findings are conclusive on appeal” and binding on the appellate court. Munski v. Unemployment Comp. Bd. of Review, 29 A.3d 133, 137 (Pa.Cmwlth.2011). Accordingly, this Court’s review is restricted to determining whether' the two findings of fact Claimant disputes are supported by substantial evidence.

On appeal, Claimant only questioned the UCBR’s findings of fact 7 and 12. As thoroughly explained with record citations, those findings of fact are supported by substantial record evidence. Because Claimant did not challenge the remaining twelve findings of fact, they are conclusive as a matter of law. Id.

Claimant’s Argument

Claimant’s Argument Section of her Brief is only 5 paragraphs, and 1 paragraph is case law and citations. Therein, Claimant contends that the UCBR erred in finding that Claimant was discharged for willful misconduct because

[t]he basis for this holding was the finding of fact that [Claimant] did not contact [Employer] when she became available for work. However, [Claimant] told [Employer’s] attorney under oath on July 11, 2011 that she was available for work. This is how [Employer] learned [Claimant] was able to perform some work and contrary 'to the [UCBR’s] finding that she did not contact [Employer] when she was able to work.

Claimant Br. at 9. Notwithstanding Claimant’s assertion, the record contains no evidence’ to support Claimant’s contention that Employer learned from Claimant’s deposition testimony that Claimant could return to work. In fact, the record evidence is to the contrary. Claimant’s store manager, who was the individual seeking to contact Claimant about available posi*1247tions, testified that he was unaware of the WC litigation:

CL Okay. During the course of 2010 and 2011, were you familiar with [Claimant’s WC] Claim?
EW Could you — in which scope?
CL That there was [WC] litigation pending.
EW I was not aware there was litigation. I was aware that she was injured and that she was out on a[sic] Workers’ Compensation.

N.T., March 23, 2012 at 13. In addition, Claimant admitted, “I had no contact with [Employer] at all because my lawyer said not to.” Original Record, Item No. 5, Claimant Oral Interview (Claimant Interview).

Claimant further asserts, in her 4 paragraphs of argument, that her conduct did not rise to the level of willful misconduct. Specifically, Claimant maintains that

[Employer] was already put on notice to speak with [Claimant’s] attorney, not her....
If [Employer] wanted to speak with her after that date, an attempt should have been made through the proper channels. The fact that [Employer] commenced litigation against [Claimant] in her [WC] claim, forcing the parties to speak through attorneys, is not conduct that rises to the level of willful misconduct. ...

Claimant Br. at 10.

Although Claimant avers that Employer had a duty to follow the requirement Claimant unilaterally created of speaking to her only through her attorney, that position is unsupported in fact and law. Employer sought to communicate with Claimant about available positions but received no response “other than a phone eall [from] her attorney saying-that she would not be available for any work. N.T., March 23, 2012 at 9. Employer does not have a legal obligation nor does it follow logically that Employer would need to continually or even periodically reach out to Claimant about available work when she already communicated she could not work. How is Employer to know that Claimant can return to work unless Claimant communicates the same to Employer? As this Court in Homony v. Unemployment Compensation Board of Review, 11 Pa.Cmwlth. 142, 312 A.2d 77 (1973), held:

We think that it is the duty of an employee to maintain reasonable communication with [her] employer during a period of prolonged absence. We hold that [the claimant’s] failure to contact her employer during her seven-month absence, and particularly during the 40 day period following the termination of her sick benefits, was unreasonable and therefore a breach of the duty she owed her employer. Her conduct therefore, satisfies the above definitions and constitutes ‘willful misconduct’ under the Unemployment Compensation Act [(UC Law) 6].

Id. at 78-79. The Majority attempts to distinguish this case based on the fact that Claimant is on WC disability. However, Homony is a UC case and Claimant is seeking UC benefits in the instant case. Thus, Homony is controlling. Moreover, the law is well-established that “[a]n employer has a right to expect an employee who is on sick leave to report back to work when cleared to do so by his physician or at least to notify his employer of his reasons for failing to return.” Geesey, 381 A.2d at 1344 (emphasis added). Thus, an employee’s failure to act in this reasonable *1248manner in communicating with her: employer regarding her ability to return to work constitutes willful misconduct. Id.

The Majority recognizes that “the [UCBR] relies upon Oliver v. Unemployment Compensation Board of Review, 69 Pa.Cmwlth. 98, 450 A.2d 287 (1982) (holding that claimant committed willful misconduct when she did not return to work at the end of her leave and did not comply with her' employer’s notification policy).” Majority Op. at 1239. It further notes:

It has been held that an employer can reasonably expect an employee to return to work after medical leave has ended. In [Geesey ], this Court held that an employee committed willful misconduct when he did not tell his employer that he had recovered from surgery for which he had been granted medical leave. We reasoned that an employer has the right to expéct an employee ‘who is on sick leave to report back to work when cleared to do so' by his physician or at least to notify his employer of his reasons for failing to return.’ Id. at 1344 (emphasis added).
This case is distinguishable from Geesey. Wolfe acknowledged that Employer had not received ‘documentation’ from Claimant’s ‘treating physician’ that she could work in any capacity. N.T. 3/23/12 at 14. More to the point, Claimant notified Employer at her deposition why she could not return to her pre-injury job. Finally, Claimant’s 'workers’ compensation ‘leave’ did not terminate until September 22, 2011, by which time she had been discharged.

Majority Op. at 1239 n. 8. First, the UCBR dobs not in any manner reference, cite or even mention Geesey, so it is unclear why it is footnoted when it supports the UCBR’s conclusion. Although the Majority asserts that Geesey is distinguishable, such statement is contrary to Claimant’s position and the record evidence herein. For example, the Majority maintains that the WC deposition is notice to-the Employer that Claimant could not work, while Claimant maintains her WC deposition is notice that she is able and available to work for purposes of UC .benefits. Further, the Majority states that Claimant’s WC leave did not terminate until September 22, 2011, yet Claimant declares she was able and available to work as of July 11, 2011. Second, the Majority asserts that Oliver is inapposite because here Employer did not have a notification policy. However, once Employer’s physician cleared Claimant to return to work and Wolfe contacted Claimant, Claimant became obligated to communicate with Employer. Correspondingly, once Claimant was able to return to work as she testified she was able to do, she was duty-bound to notify Employer. Thus, the distinction raised by the Majority has no impact upon the real issue here, i.e., whether Claimant’s failure to notify Employer that she was able and available to work constituted willful misconduct.

Simply because an employer commences WC litigation does not necessitate nor force the employer and claimant to speak through their attorneys concerning claimant’s ability to return to work, available positions or job restrictions. This case is not a WC action. The critical facts in this UC litigation are as follows:

1) A claim for UC benefits is premised on Claimant’s ability and availability to work. To be eligible to receive UC benefits a claimant must be “able to work and available for suitable work.” 43 P.S. § 801(d)(1).
2) The above legal requirement is in stark contrast to Claimant’s WC allegation that she is physically unable to return to work and therefore her WC ben*1249efits should not be modified, suspended or terminated.7
3) Claimant chose not to respond to Employer’s telephone calls and letters.
4) Claimant admitted she had no contact with Employer.
5) Claimant through her legal counsel informed Employer that she was unable to work.
6) Wolfe testified that he had no knowledge of Claimant’s WC litigation. The only information Employer had at the time of Claimant’s, employment termination was an unresponsive employee, and a letter and a phone call from her counsel informing Wolfe that “[Claimant] would not be available for any work.” N.T., March 23, 2012 at 9 (emphasis added); see also Claimant Interview (wherein Claimant admits “I had no contact with [Employer] at all because my lawyer said not to.”).

Deposition Testimony is Not Communication with Employer

Claimant does not cite any case law to substantiate her position that her WC deposition testimony that she was able to work as a food inspector constitutes communication with her Employer that she was able and available to work. The Majority in agreeing with Claimant states “[Claimant] related this information, under oath, in response to the questions posed by Employer’s own attorney.'... It was not reasonable for Employer to expect Claimant to convey information already known by, or related to, Employer in her [WC] deposition.” Majority Op: at 1242. The Majority cites Eckman v. Erie Insurance Exchange, 15 Pa. D. & C. 5th 55, 60 (2010), affirmed, 21 A.3d 1203 (Pa.Super.2011) (“when a liability insurer retains a lawyer to defend an insured, the insured is considered the lawyer’s client.”) to support this proposition. However, Eekman is inappo-site because the court held that once a lawyer is engaged in an attorney-client relationship with the insurer’s insured, he is ethically bound to advocate exclusively on behalf of the insured client, not the insurance company who hired him. Id. The Court in no manner imposed a duty on the insurer’s workers’ compensation attorney to communicate to employer’s personnel the availability of a testifying claimant to return to work nor can any such stretch be made. As this Court has opined, “Claimant’s communication with the Employer’s insurance representative would not relieve him of the duty to inform Employer of his medical condition.” Washington v. Unemployment Comp. Bd. of Review, 94 Pa.Cmwlth. 404, 503 A.2d 1055, 1056 n. 3 (1986) (citing Crawford v. Unemployment Comp. Bd. of Review, 71 Pa.Cmwlth. 592, 455 A.2d 751 (1983)).8 Similarly, the California Court of Appeal has held, “ordinarily, a disabled employee may not require an employer to communicate directly with the employee’s attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings.” Claudio v. Regents of Univ. of Cal., 134 Cal.App.4th 224, 247, 35 Cal.Rptr.3d 837 (2005).

*1250Moreover, employers are legally mandated to have WC insurance. Included as part of the WC insurance premium is the WC insurance carrier’s duty to defend against and represent employers in WC claims. Consequently, WC insurance carriers, not employers, appoint legal counsel to handle the action. Of crucial importance is the fact that the employer has no ability or authority to designate what attorney will represent its organization in the WC action as that determination is at the sole discretion of the* WC insurance carrier. In addition, the WC litigation is separate and apart from the employer’s daily affairs; an employer’s supervisors, managers and often times the human resource managers know nothing about the WC action until the case is closed. Further, this Court has no information as to the length of the WC deposition and the Majority has now imposed a duty on the WC attorney to remember every detail of that deposition to report back to the insurance carrier or the employer. Although a transcript was made of the deposition testimony, such transcript typically takes 3 to 4 weeks to produce which in this case would have been beyond the date of Claimant’s employment termination.

To rule that an employee’s WC deposition testimony is equivalent to communicating with the employer will have numerous far reaching devastating results. Communication is an essential key to the success of any relationship. To hold that an employee may communicate his ability to return to work to an individual unknown to the employer and who the employer had no influence in selecting to represent its interests undermines the employer-employee relationship. One of the most destructive results of the Majority’s holding is that now an employer’s WC insurance carrier’s attorney, instead of the employee, has the responsibility to communicate with the employer concerning the employee’s medical condition immediately upon the conclusion of a deposition, and without the benefit of the transcript from that deposition. Should the WC insurance carrier’s attorney fail to communicate the information or present the details inaccurately, the WC insurance carrier’s attorney may be liable to the employer and the employee for his inaction or actions. For the reasons stated above, I would conclude that Claimant’s WC deposition testimony in the presence of lawyers and a court reporter does not fulfill Claimant’s duty to communicate with Employer that Claimant is able and available to return to work.

Majority’s Statements Not Supported by the Record

The Majority makes statements not supported by the record to essentially create its own factual findings to support its conclusion. First, the Majority stated: “Wolfe testified that Employer terminated Claimant because she did not return to work from ‘her Workers’ Comp leave of absence’ after she was cleared to do so by Employer’s IME physician in December 2010.” Majority Op. at 1237. Wolfe did not so testify.9 When asked why Claimant was discharged, Wolfe responded:

*1251It’s because we — several attempts that we made to talk to [Claimant] about positions that we had or work that we had available for her toent unanswered. Other than a phone call with her attorney saying that she would not be available for any work with us and to proceed with giving any other communication directly to him.

N.T., March 23, 2012 at 9 (emphasis added). Second, the Majority asserted that when “Counsel asked Wolfe whether Employer had offered Claimant any employment after July 11, 2011, ... [Wolfe] did not answer the question.” Majority Op, at 1237. A thorough review of the transcript reveals that Wolfe did respond to the only question similar to that cited by the Majority. That question and answer are as follows:

ET [Employer Representative] And did [Employer] offer [Claimant] any employment after, according to the Referee’s decision, her ability and availability for some kind of work after or as effective July 11, 2011?
EW [Wolfe] She certainly could have. She was still employed at that point. So if she was available for work, she could have came [sic] into work. She was still employed with us at her rate — her rate of pay.
ET And what kind of work did you have available for [Claimant] as of July 11th or dates after that?
EW There were multiple positions we had available that we wanted to discuss with her, but our inability to discuss them with her precluded us to [sic] offer her those positions.

N.T., March 23, 2012 at 10 (emphasis added). The dispositive issue is not whether Employer contacted Claimant after July 11, 2011, but whether Claimant notified Employer she was able and available to work as of the day she claimed she could return to work — July 11, 2011.

Third, the Majority opined: “There is no evidence that Employer contacted Claimant about a light duty job after July 11, 2011, as was its duty under the [WC] Act.” Majority Op. at 1241. The WC Act is not controlling as this is a UC case. As cited above, our precedent holds that “it is the duty of an employee to maintain reasonable communication with his employer during a period of prolonged absence.” Homony, 312 A.2d at 78.

The Majority maintains that “there is a disconnect between the [UCBR’s] finding that Claimant could do ‘some kind of work’ on July 11, 2011, and the [UCBR’s] conclusion that she ‘did not respond to the employer’s offer of work.’” Majority Op. at 1240. The Majority further asserts that Employer cannot rely on its physician’s clearance because Claimant was not released by her own physician. Although the Majority criticizes Employer for offering Claimant various job opportunities when its physician had cleared Claimant because Claimant’s doctor had not yet released her to return to work, the Majority in reversing the UCBR rules that Claimant is eligible to receive UC benefits as of October 9, 2011 — two months before Claimant’s physician released her to return to work,

Lastly, the Majority declares that “[t]he [findings of [f]act are not in chronological order. The [UCBR] simply added Findings of Fact No. 6-13 to Findings of Fact No. 1-5 made in the Referee’s first decision.” Majority Op. at 1239. The Majority infers that this chronology was meant to imply that Employer attempted to contact Claimant after July 11, 2011. I disagree. The UCBR made only 14 findings of fact. None of which misconstrued the facts or the testimony.

*1252•The law requires that the findings of fact be supported by substantial evidence, not that findings of fact be written in a particular order," especially as in this case, where Claimant’s actions did riot occur chronologically. Expressly, “[t]he [UCBR]’s' findings are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings.” Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa.Cmwlth.2008) (emphasis added). For example, Claimant had a work injury, but asserted she was able and available for work before her treating doctor cleared her to return to work, further, Claimant applied for UC benefits before being cléared by her treating physician to return to work. Such unique factual findings' mandate that fact finders, such as the UCBR, be given latitude to list their findings' as they deem appropriate based upon the facts of the particular case.

Moreover, the UCBR is an independent administrative agency charged with upholding and enforcing the UC Law. “[T]he [UCBR] itself has a duty to protect the unemployment compensation fund from ineligible claimants and to investigate all the facts in a given case.” Perminter v. Unemployment Comp. Bd. of Review, 57 Pa.Cmwlth. 426, 426 A.2d 245, 247 (1981). It is a neutral body which has no reason to distort facts as it is the fact finder. All findings of fact not objected to are conclusive. Hessou. What is skeptical is Claimant’s argument that while she was litigating her WC action in which she contended she was not able to work (which is what her attorney communicated to Employer), Claimant’s testimony in the presence of some unknown lawyer that she could work is proof to substantiate her UC claim. Even more skeptical is Claimant stating she was not offered work after July 11, 2011, the date she claims she was able and available to work, despite admitting that she had no contact with Employer making Employer aware that she was able and available to work.

The Majority amplifies this confusion by relying upon the WC Act to decide this UC case, as opposed to the UC Law. Specifically, the Majority states: “The [WC] Act governs the reasonable expectations of an employer with respect to an employee receiving workers’ compensation.”10 Majority Op. at 1241. While the WC Act may determine the reasonable expectations of an employer with respect to workers’ compensation, the UC Law governs the determination as to whether a claimant is eligible to receive UC benefits. Section 401 of the UC Law specifically provides: “Compensation shall be payable to any employe who is or becomes unemployed, and who — ... (d)(1) [i]s able to work and available for suitable work[.]” 43 P.S. § 801.

While Claimant consistently maintains that she did not need to respond to Employer because her physician did not clear her to work until December 21, 2011, she applied for UC benefits on October 9, 2011, and testified that she was able and available for work as of July 11, 2011. In the meantime,. Claimant was discharged from employment on August 4, 2011, and Claimant’s WC claim was settled on September 22, 2011. Claimant chose a date before her discharge from employment to establish she was allegedly able and available to work (although she admitted she had no contact with Employer), and waited to apply for UC benefits until after her WC case settled.

*1253Notwithstanding, the . issues Claimant raised.to be decided by this Court áre whether the UCBR’s findings of fact 7 and 12 are supported by. substantial record' evidence, and if so, whether Claimant’s conduct in not notifying Employer that she was able and available for work as of July 11, 2011 constituted willful misconduct. Viewing the testimony in the light most favorable to Employer, as we must, and giving Employer the benefit of any inferences which can logically and reasonably be drawn from the evidence, findings of fact 7 and 12 are supported by substantial evidence and the UCBR correctly determined that Claimant’s conduct made her ineligible for UC benefits. See Big Mountain Imaging v. Unemployment Comp. Bd. of Review, 48 A.3d 492 (Pa.Cmwlth.2012). For all the above reasons, I would affirm the UCBR’s order.

Judge RENÉE COHN JUBELIRER joins in this dissent.

. Act of June 2, 1915, P.L. 736, as amended, 11 P.S. §§ 1-1041.4, 2501-2708,

. Pa.R.A.P. 1513(d) was amended December • 2, 2014; however, the prior rule was in effect during the applicable period of this appeal.

.Specifically, the UCBR found:

4. The [Claimant remained under a doctor's care until July 11, 2011.
5. From July 11, 2011, the [Claimant was able and available for some land of work.
6. The [Claimant could have worked in a light duty position for the employer as of July 11, 2011.
13. The [Claimant is able and available for work as of July 11,2011.

UCBR Dec. at 1-2. All of these findings were based solely on-Claimant's testimony and evidence. Claimant does not challenge any of these findings, thus, “they are conclusive on appeal.” Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 494 (Pa.Cmwlth.2000).

. The UCBR appears to have inadvertently stated "employer’s attorney” instead of Claimant’s attorney in finding of fact 8. That finding reads: "Then the employer’s attorney told the employer to not directly contact the claimant.” UCBR Dec. at 2 (emphasis added), Majority Op. at 1238.

. The Majority ignores this definition by stating: “The [UCBR’s] finding of willful misconduct hinges on whether Employer had a ’reasonable expectation' that Claimant violated.” Majority Op. at 1238. This misstatement is compounded by the implication that to meet the burden of proving willful misconduct Employer had to establish that Claimant lied to Employer. See Majority Op. at 1238-39 ("conduct that involves 'a knowing falsehood or misrepresentation to an employer by an employee concerning an employee's work' [is] a disregard of an expected standard of behavior[;]” “[e]xamples of substandard behavior include: lying to a supervisor that a telephone call needed to be made due to an emergency and a misrepresentation on an employment application that the employee had a college degree.”). The law in this area is not limited to that specific offense. Rather, the case law is replete with varying circumstances of an employee's disregard of a standard of behavior which the employer has the right to expect.

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

. Claimant testified at her July 11, 2011 WC deposition that she was able to work, and is using that date for purposes of'showing she was able and available for work to qualify for UC benefits, yet she continued to "collect[] total disability [WC] benefits” until September 22, 2011. Majority Op. at 1237.

. The Majority attempts to distinguish Washington and Crawford on their facts; however, said distinctions do not change the proposition for which they are cited, i.e„ communication with an insurance representative does not constitute communication with an employer,

. Wolfe's response as quoted by the Majority was in reply to the Referee’s question: "[] Wolfe, is that — do you agree with that [Claimant’s statement that she did not quit]?” N.T., March 23, 2012 at 5. The Referee followed up: "Okay. So because she did not return, was she discharged?” Id. Wolfe responded:

Yes, we had made several attempts to contact her to let her know that we had positions available for her and they were intercepted by her attorney. And her attorney had advised us not to have any direct communication with her and to have all communication sent to him. So she didn’t return any of our phone calls or any of our letters that we had let [her] know that we had positions available for her. And due to that reason, we have no — we waited several months after that occurrence before we actually separated her.

Id. at 6.

. The Majority also stated: "the communication responsibilities of both employer and claimant are a matter governed by the [WC] Act." Majority Op. at 1240 n. 10.