854 A.2d 636

Roger C. FINFINGER, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 2, 2004.

Decided July 15, 2004.

Roger C. Finfinger, petitioner, pro se.

Judith M. Gilroy, Harrisburg, for respondent.

*637Before: FRIEDMAN, Judge, and LEADBETTER, Judge, and KELLEY, Senior Judge.

OPINION BY

Senior Judge KELLEY.

Roger C. Finfinger (Claimant) appeals pro se from an order of the Unemployment Compensation Board of Review (Board) which affirmed an order of a Referee denying Claimant benefits under the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1987) 2897, as amended, 43 P.S. §§ 751-914. We affirm.

Claimant worked for Alta Telecom, Inc. (Employer) from January 5, 2001, through September 8, 2001, as a light wave test technician. Although Claimant accepted Employer’s offer of employment from his home in Pennsylvania, Claimant worked in the states of Georgia, Tennessee, Illinois, Arkansas, Colorado, and Texas. Claimant performed no work in the Commonwealth of Pennsylvania.

On September 8, 2001, Claimant suffered a work-related injury, and thereafter began receiving Workers’ Compensation (WC) benefits from the State of Georgia. While receiving those WC benefits, Claimant was laid off by Employer on February 22, 2002.

Claimant thereafter filed an unemployment claim in Pennsylvania with an effective date of July 13, 2003. The Erie Unemployment Compensation Service Center (Service Center) denied Claimant benefits pursuant to Section 401(a)1 of the Law, and Section 204(b)2 of the Pennsylvania Workers’ Compensation Act (Act).3 Claimant timely appealed the Service Center’s determination to a Referee.

A hearing subsequently ensued before the Referee, at which both parties were represented by counsel and presented evidence and testimony. The Referee, by decision and order dated October 3, 2003, affirmed the Service Center’s determination, denying Claimant benefits pursuant to Section 401(a) of the Law and Section 204(b) of the Act. Claimant timely appealed to the Board.

The Board took no further evidence, and affirmed the Referee’s order, by order and decision dated November 14, 2003. Claimant now appeals the Board’s order to this Court.

This Court’s scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Kirkwood v. Unem*638ployment Compensation Board of Review, 106 Pa.Cmwlth. 92, 525 A.2d 841 (1987).

Claimant does not dispute the fact that he did not work, and did not have wages, during his base year period preceding his benefit application date of July 13, 2003. Undisputedly, Claimant was receiving Workers’ Compensation benefits from the State of Georgia during this period, and thus is ineligible for benefits under the express terms of Section 401(a) of the Law.

However, Section 204(b) of the Act provides, for purposes of determining eligibility under the Law, an alternative qualifying basis for an employee who otherwise would not meet the monetary and credit week requirements of Section 401(a) of the Law. Such an employee, otherwise ineligible under Section 401(a) due to a work-related injury compensable under the Act, may elect to have his base year consist of the four complete calendar quarters immediately preceding the date of the work-related injury.

The Board noted, however, that it was the State of Georgia that determined that Claimant’s injury was compensable under its applicable state law. The Board reasoned that Claimant’s failure to file for Workers’ Compensation benefits in Pennsylvania prevented him from meeting Section 204(b)’s requirement that he prove that his injury was compensable under the Act.

Claimant argues that he is not ineligible for benefits under the Law, as held in part by the Board, simply because he was not actually compensated under the Act. Claimant cites to Richards v. Unemployment Compensation Board of Review, 564 Pa. 375, 768 A.2d 852 (2001), for the proposition that it does not matter if the injury at issue actually was compensated under the Act, as long as it could have been.

In Richards, our Supreme Court examined the language of Section 204(b), with emphasis on the word, and concomitant concept, of a “compensable” injury as used in that Section, as opposed to a “compensated” injury — one that was actually the basis for an award of benefits under the Act. The Court therein expressly stated that an injury need not be actually compensated to be compensable under Section 204(b), but that, for purposes of determining whether the receipt of Act benefits may be used to establish a credit week for Law benefit eligibility purposes, an injury is not “compensable” unless it results in some disability or loss of earning power, in addition to a work-related injury. Richards, 564 Pa. at 383-384, 768 A.2d at 856-857.

We note, initially, that Richards is distinguishable from the matter sub judice in that the claimant in Richards was already receiving benefits under the Act, unlike Claimant in this matter. Claimant herein has apparently presented an issue of first impression for our Courts under the Law and under the Act.

The Supreme Court in Richards makes clear that a work-related injury need not be compensated under the Act for Law benefit eligibility purposes, but need merely be compensable. Id. at 384, 768 A.2d at 857. Richards reiterates that

A compensable injury has acquired a particularized meaning through case law, which requires a claimant to demonstrate a causal relationship between the injury and employment to establish com-pensability ... Even with the necessary causal relationship, an injury is not com-pensable unless it results in some disability, i.e., a loss of earning power ... Furthermore, a work-related injury may not be compensable because it is barred by a procedural provision of the WCA. See 77 P.S. § 602 (requiring the filing of *639a claim petition within three years of the date of injury); see also 77 P.S. § 631 (mandating the provision of notice to the employer within 120 days of the injury).

Id., at 384 n. 9, 768 A.2d at 857 n. 9.

However, in the instant matter, the record is bereft of evidence establishing that Claimant’s injury is compensable under the Act, or our precedents construing the Act. In his brief to this Court, Claimant has offered no argument, and cites to no medical or other evidence, demonstrating a causal relationship between his injury and employment, or demonstrating any defined loss of earning power4 as defined by the Act. As such, Claimant’s argument on this point, while meritorious in concept, must fail on the record.5

Accordingly, we affirm.6

ORDER

AND NOW, this 15th day of July, 2004, the order of the Unemployment Compensation Board of Review, dated November 14, 2003, at B-418920, is affirmed.

Judge FRIEDMAN concurs in the result only.

Finfinger v. Unemployment Compensation Board of Review
854 A.2d 636

Case Details

Name
Finfinger v. Unemployment Compensation Board of Review
Decision Date
Jul 15, 2004
Citations

854 A.2d 636

Jurisdiction
Pennsylvania

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!