Tuesday, July 04, 2017

UC - drug test - telephone hearing - submission of evidence prior to hearing

Bowers v. UCBR – Cmwlth. Court – April 4, 2017

Board decision denying benefits under sec. 402(e.1), 43 P.S. sec. 802(e.1) (failure to submit to/pass drug test) affirmed. 

Key facts:
            - the Board’s reliance on two reports of positive drug tests, which “were admitted into evidence at the Referee hearing without objection.” (emphasis added).
            - rejection of claimant’s proferred negative drug test, to which the employer did object and which were thus barred from consideration, because of claimant’s failure to submit the test in advance of the telephone hearing, as required by 34 Pa. Code 101.130(e), 101.131(h), and as directed in the Notice of Hearing.
Note that the cited regulation says that the “[w]hen any testimony will be given from or with the aid of a document not previously distributed to the parties by the tribunal, the party expecting to introduce the document shall deliver it to the tribunal, and the tribunal shall distribute it to each other party and, if known, counsel or authorized agent before or at the beginning of the testimony,” unless the tribunal requires that the documents be delivered “up to 5 days in advance of the hearing.” 

Query:  Did the employer produce its test reports in advance of the hearing?  That issue is apparently not addressed in the opinion.  If not, then were such reports admissible, even if the claimant failed to object to their admission?