Sunday, March 24, 2019

UC - capricious disregard - conflicting evidence - lack of findings, etc. - **important decision**


Bertram v. UCBR – Cmwlth. Court – March 22, 2019 – reported decision (2-1)

Held:  Case remanded.  UCBR adopted Referee decision, without discussion, where it had not resolved a conflict in the evidence or made an essential crediblity determinatio.

From the opinion—

What is “capricious disregard” of the evidence?
“We have explained that it “occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.” Wise v. UCBR, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of evidence occurs “where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment.” Id. at 1263. It is the responsibility of the factfinder to resolve the conflicts in the testimony and explain why it has accepted, or rejected, each piece of relevant evidence. Id. The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an “appropriate component of appellate consideration in every case in which such question is properly brought before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002).”

The Board erred in adopting the Referee decision, in toto, without discussion or necessary findings
The Referee’s factual findings are based upon the testimony of an ER witness, but this testimony was contradicted by other testimony and by documentary evidence.   In addition, the ER witness testimony contained inconsistencies on the critical question on when the witness decided to fire Claimant.   By contrast, the completing testimony of a witness for Claimant was “clear” and “highly relevant.”  The Referee made no comment this testimony, and the Board “affirmed without explanation.”

The Referee and Board did not make an adequate determination of credibility –  silence is not an implicit finding
The decisions of both the Referee and Board were silent on the testimony of CL’s witness.   The Court soundly rejected the Board’s argument that the “Court must infer from silence that the Referee ‘implicitly” rejected” this testimony and “implicitly accepted” the testimony of the ER witness, in reliance on the following language from the Referee decision:
Both the claimant and the employer appeared at the unemployment compensation hearing to present testimony and evidence on the issues under appeal. The above findings represent the competent evidence and credibility determinations made by the Referee in rendering the following decision.

The Court’s response: “We reject the Board’s argument.”  It said that
            * First, the “boilerplate paragraph in the Referee’s determination is not dispositive of whether the Referee capriciously disregarded record evidence. This paragraph is generic, not specific to any of the evidence in this record. Simply, it is not a substitute for express credibility determinations, and it does not discharge the Board’s responsibility to consider and weigh the relevant evidence in a case.
            * “Second, it is not the responsibility of the reviewing court to divine the reason for the factfinder’s silence. Here, the highly relevant testimony of a disinterested third party did not elicit a single comment from the factfinder. As we have held, capricious disregard of evidence occurs where the factfinder “has completely ignored overwhelming evidence without comment.” Wise, 111 A.3d at 1263.
            * “Third, implicit credibility determinations do not resolve the conflicts between the testimonial and documentary evidence.“
For all of those reasons, the Court “conclude[d] that the Board has capriciously disregarded relevant evidence.”

The Referee hearing was the equivalent of no hearing at all.
Given the errors listed above, “[i]t is as if Claimant did not have a de novo hearing.   The Referee simply repeated, with virtually no discussion, the findings of the UC Service Center.”  The Referee did not address Claimant’s contentions on several dispositive issues and did not resolve conflicts between the testimony of key witness “with express credibility determinations.”   The Referee ignored, without comment, the testimony of the CL witness, as well as some uncontradicted testimony.  “Where ‘there is strong critical evidence that contradicts contrary evidence, the adjudicator must provide an explanation as to how it made its determination.” Bentley v. Bureau of Professional and Occupational Affairs, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).   The Referee disregarded “relevant and critical evidence. . . . The Board must resolve the conflicts in the record evidence in order for meaningful appellate review to take place. For these reasons, the Board’s adjudication is vacated, and this matter is remanded to the Board to issue a new adjudication in accordance with our instructions herein. “

Dissenting opinion of Judge Wojcik
The dissent held that the UCBR decision was acceptable, because there is “[n]othing in the unemployment [statute or] regulations [that] requires a referee or the Board to render a ‘reasoned’ decision that explicitly resolves all conflicting evidence. . . . While I agree that, generally, more detailed findings and discussion by the referee or the Board would be helpful, the findings made below are adequate to conduct meaningful appellate review, and there is nothing of record that would justify reversal. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.”

“We have repeatedly stated that it is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Sipps v. UCBR, 181 A.2d 479, 484 (Pa. Cmwlth. 2018); Kelly v. UCBR, 172 A.2d 718, 725 (Pa. Cmwlth. 2017); Ductmate Industries, Inc. v. UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Further, we have consistently observed that, while the Board must make crucial findings on the essential issues, “[the Board] is not required to address specifically each bit of evidence offered.” Panella v. UCBR (Pa. Cmwlth., No. 351 C.D. 2013, filed August 29, 2013), slip op. at 4 (citation and quotation omitted).4 See also Kunselman v. UCBR (Pa. Cmwlth., No. 444 C.D. 2012, filed February 7, 2013), slip op. at 3 n.2 (same); and Kozlina-Peretic v. UCBR (Pa. Cmwlth., No. 1088 C.D. 2008, filed December 23, 2008), slip op. at 3 (same).”

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