IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra Schiefer,

:

Petitioner :

:

v.

:

:

Workers' Compensation

:

Appeal Board (First Data Corporation), :

Respondent :

No. 1579 C.D. 2013 Submitted: February 7, 2014

BEFORE: HONORABLE REN?E COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON

FILED: June 5, 2014

Petitioner Debra Schiefer (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (WCAB). The WCAB affirmed the decision of a Workers' Compensation Judge (WCJ), which (1) granted Claimant's claim petition, finding that Claimant sustained a work-related injury in the course of her employment in customer service with First Data Corporation (Employer); and (2) granted Employer's termination petition, finding that Claimant had fully recovered from her work-related injury. For the reasons set forth below, we affirm the WCAB's order.

I. BACKGROUND This matter focuses, in large part, on the interplay between a claim Claimant made for unemployment compensation benefits as a result of her

separation from employment with Employer and her claim for workers' compensation benefits. As such, the pertinent factual and procedural background of each claim follows.

A. Unemployment Compensation Claim Claimant filed her claim for unemployment compensation benefits on June 6, 2010. Of import for purposes of this appeal, on June 18, 2010, Employer completed an Employer Questionnaire with regard to Claimant's unemployment compensation claim, indicating that Claimant was on a leave of absence for health problems and that Employer did not offer other work to Claimant because it "was not an option ? [Claimant] cannot work at all." (Reproduced Record (R.R.) at 371a.) On June 21, 2010, Employer also completed an Employer's Notice of Application/Request for Separation and Wage Information form (Employer's Notice of Application), indicating that Claimant "is currently on a leave of absence due to a work[-]related injury. [Claimant] has not given . . . [Employer] a return date." (Id. at 370a.) Employer provided this information in response to a question asking the reason for Claimant's separation or partial unemployment. (Id.) Ultimately, the Unemployment Compensation Board of Review (UCBR) denied Claimant unemployment compensation benefits for the week ending June 26, 2010. (UCBR Decision at 2, 4.) Specifically, the UCBR concluded that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law)1 and disqualified from receiving

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ? 802(b). Section 402(b) of the Law provides that an employee is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.

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benefits under Section 401(d)(1) of the Law.2 (Id. at 4.) In so doing, the UCBR

made the following findings of fact:

1. The claimant was last employed as a customer service representative by the employer from November 15, 1999, at a final hourly rate of $13.50 and her last day of work was October 30, 2009.

2. On August 24, 2009, the claimant sustained a work-related injury to her back.

3. The claimant has an ongoing workers' compensation proceeding regarding this injury.

4. The claimant applied for [leave under the Family and Medical Leave Act of 1993 (FMLA)3], which was granted on a limited basis, as she had a previous FMLA claim that ran from June 1, 2009, through August 16, 2009.

5. The claimant returned to work with restrictions of being able to work only four hours per day and unable to sit or stand for long periods of time.

6. The employer asked for but never received a doctor's note from the claimant and she was required to return to work at full duty by the employer.

7. The claimant worked full duty from October 5, 2009, until October 30, 2009.

8. The claimant admitted that the employer accommodated her verbal medical restrictions.

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ? 801(d)(1). Section 401(d)(1) of the Law provides that a claimant must be "able to work and available for suitable work" in order to receive benefits.

3 29 U.S.C. ?? 2601-2654.

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9. The employer provided the claimant with additional breaks and had provided in 2008 a specific chair to address the claimant's medical issues.

10. The claimant was subsequently removed from work to receive more intense medical treatment.

11. The claimant subsequently did hand the employer a doctor's note but it was after she had removed herself from work because her condition became more serious.

12. On June 30, 2010, the employer provided the claimant with notice that she was medically cleared to return to work.

13. Claimant did not arrange for the medical release information to be sent to the employer but rather sent it to the employer's medical risk manager and handled it through the court.

14. The claimant voluntarily quit her employment.

15. The claimant was not able and available.

16. The claimant continues on the date of the hearing to allege that she is unable to stand or sit for long periods of time.

17. The claimant alleges that the doctor told her she could work four hours per day with frequent movement.

18. The claimant admitted that she was out of the state from June 20 through [June] 28, 2010, visiting her son.

19. The claimant worked on Election Day, November 2, 2010, and received monies.

(Id. at 1-2.)

The UCBR noted that there was no question that Claimant sustained a

work-related injury, and it further observed that Claimant subsequently went out of

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work because her injury became more serious after October 30, 2009. (Id. at 3.) The UCBR explained, however, that from the time Claimant left work on October 30, 2009, until she was provided notice through an independent medical examination (IME) that she could return to work without restrictions, Claimant failed to inform Employer of any work restrictions she may have had and that she was available to work within those restrictions. (Id. at 3-4.) Consequently, the UCBR concluded that Claimant did not meet her burden to prove that she made a reasonable effort to maintain her employment and that she was available for work with restrictions. (Id.) Moreover, the UCBR rejected Claimant's testimony that for the claim week at issue, Claimant was able and available and realistically attached to the job market. (Id. at 4.) The UCBR observed that the Claimant Questionnaire, to which Claimant did not object, contained admissions against interest that Claimant was out of the state visiting her son and, thus, her presumption of availability and realistic attachment to the labor market had been rebutted for that claim week. (Id.) The UCBR, therefore, concluded that Claimant was ineligible for benefits under Sections 402(b) and 401(d)(1) of the Law. (Id.)

B. Workers' Compensation Claim On January 28, 2010, prior to filing her unemployment compensation claim, Claimant filed a claim for workers' compensation benefits pursuant to the Workers' Compensation Act (Act).4 In her claim petition, Claimant alleged that she sustained a work-related injury to her back on August 24, 2009, while moving

4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ?? 1-1041.4, 2501-2708.

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