I won my first appeal in front of a referee, now ex employer is appealing to the UC Board live in PA

by TRIN
(PA Unemployment Board Appeal)

Let me start by saying I wished I found this website sooner before my hearing then I would have been better prepared. I would have known what I could and could not do in asking for records of my personal files and my rights to subpoena my co-workers. Nor did I know what documentation they placed into evidence till I showed up for the hearing.

As to the reason they fired me. I failed to notify a RN of an arrhythmic change on the heart monitors I was watching, along with all the other duties I was required to do, answer the phones, call bell, and doctors orders.

As to this one monitor, I was asking most of night for them to check the leads. I was getting a lot of artifact. I even told the RN that there were some things I didn't like, even showed her.

As the night progressed and after each time I asked for leads check they did and then got a pause and then get rhythm, I thought that it was a response to me asking for the leads to be check during the replace or fit. So, I thought the pause was due to that.

Next day I found out that the patient told his PA that he passed out and he also told his RN that he did. Then, when they went though the alarms found out times they could see a pause, but they did not look at what was on the monitor seconds before I pulled them up to show them what I saw.

Also, the RN was informed, why did she not come out and ask to see what was on the monitor at the time, she never addressed it, nor followed it through.

I thought I was in a losing cause but I stuck to my story told referee how I saw it unfold. The truth never hurts.

I know this is long, but I won.

But now I'm worried, even if won. If they appeal what do I do.

Here is what judgment says:

The Referee can understand why the employer would consider this error of the claimant to be serious matter. However, even though the claimant's job involved responsibility for heart monitors and for the life and health of patients, this does not mean that an error in judgment constituted a willful misconduct.

The employer has not met its burden of proving that the claimant was discharged for willful misconduct. Benefits must therefore be granted under Section 402(e) of the Pennsylvania Unemployment Compensation Law.

I now just received notice that they are appealing to the board. Stating that the referee erred as a matter of law.

There is more to it which I really do not understand, but I maintain I misread the situation because I was having problems all night with this person’s monitor. They are also stating that it was not the claimant’s responsibility to interpret the heart rhythms and or alarms but to merely report changes. (If this is so, then why do I have to take compliancy tests on heart rhythms).


Ends with we reserve the right to submit additional reason for this appeal upon receipt of the Transcript if the testimony and exhibits taken at the hearing.

Now I just don't know what to do, should I summit a letter stating my reasons for agreeing with the first appeal which I won? Or wait and see what happens.


Thank you for any information and I will pass on this website, for you are doing a great service by explaining and trying to help.




Hi,

You could submit what is called an affirmation letter, but would you know which cases to site about a hearing officer having wide discretion to determine credibility and interpret the facts of any particular situation?

Currently, the employer has not submitted a written argument that cites case law to support the supposed errors made by the referee.

And I might add that you're sweating what sounds like a long shot.

Generally speaking .. boards only reverse hearing decisions when the error was so blatantly one of bias and that is what I would call a slap on the wrist for the referee .. to be reversed.

The more common scenario when someone submits a valid written brief (the argument) to the board is a remand.

In PA, that could be a remand for a new de novo hearing (that means new, fresh and usually requires in the order from the board for the first hearing decision to be vacated) When they reschedule the hearing, you'd have a new referee.

Or, it could be a remand for the taking of additional testimony to fully develop the facts of the case to see if that might change the decision. This usually goes back to the same referee or if a new one .. they would have to listen to the recording of the first hearing to bring them up to speed.

One other thing a board of review panel can do is modify a hearing decision .. which may be part of a remand or a reversal, but generally speaking, it's when they cite a different section of the law as being the relevant section.

Disclaimer
Hey everybody, this is not legal advice .. this is me relating the information I learned as a coordinator about how unemployment board appeals work in PA.


Chris

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Feb 23, 2012
Unemployment Appeal to Indiana Board of Review
by: Chris - Unemployment-tips


Hi Amanda,

I wish I could be only reassuring.

However, I need you to focus on what the IN DWD says about appeals to the board of review and the submission of new evidence that wasn't submitted during the lower level appeal.

The ALJ’s decision will become final unless you appeal the adverse Decision to the Review Board within eighteen (18) calendar days after the mailing date of the decision. The appeal must be in writing and signed by you as the appealing party. The appeal must contain the case number, the Claimant’s social security number, and an explanation of the reason for appeal. If you have additional information or documents that were not available at the time of the ALJ hearing, a request to submit the additional evidence and the documents should be included with the letter of appeal to the Review Board. The appeal should be mailed to:

Department of Workforce Development
UI Review Board
100 North Senate Avenue, Suite N802
Indianapolis, IN 46204
or by fax at (317) 233-3348.


Amanda, I do believe though for that request to submit additional evidence would have to include a good cause reason why it was not submitted for the lower level hearing. The employer, just like any party to an appeal had the right to place a request for continuance on the record until at which time documents could be submitted per procedure.

Appeals to boards of review do not commonly fly because a party to an appeal failed to represent themselves properly due to ignorance.

A request for a continuance should have been placed into the record due to the lack of documentation during the first hearing.

You also have the right to submit an affirmation to this appeal. It's basically now a written argument about what happened at the hearing and still focused on laws and regs. In this case, I'd say it's the rules of procedures for a "quasi judicial proceeding otherwise called "administrative law" and these proceeding do have "rules of procedures".

According to the following .. it looks like you should also know what reason the employer thinks their additional docs should be submitted as IN requires an appealing party to send everything to all parties including the request to submit them.

Indiana Unemployment Insurance Review Board Procedures

(Anyone notice that employers using an unemployment cost control company don't have to endure the cost or the futility of finding a lawyer?)


Feb 23, 2012
I am in desperate need of reassurance
by: Amanda R.

I am not going to smother you with the facts of this case. I just need some reassurance and peace of mind (before I lose mine).
-Was terminated by my employer for attendance. I was very very ill with cellulitis and in the hospital, and provided proof including my discharge info and doctors notes on the day I called off.
-I had missed days before dt illness (I had a weakened immune system, side effects of long-term prednisone therapy (which I am no longer on) and was susseptible to contracting illnesses.And my body wasnt able to "fight anything off" d/t the medication.
-I filed with unemployment in Indiana to recieve benefits. I got denied initially.
-I appealled. My employer did attend the phone hearing, however, did not provide the appeallate judge ANY documentation regarding my attendance, their attendance policies, ect prior to the hearing. The judge did allow a "read in" of parts of my employers attendance policy.
-I "won" my appeal. listed several reasons for reversing original decision, including employer failed to provide information as required prior to hearing, and that employer failed to prove dates for attendance write ups, ect. It also said that I was ill the day I called in.
-My joy was short lived as I recieved a packet in the mail from my employer with a copy of a letter sent to the appeals office stating they would like to appeal the decision. the packet also included "evidence" such as attendance write ups, ect. I am very worried about this. The "burden of proof" at my appeal hearing was on my employer to prove that I was not wrongfully terminated. Looking over this information, I am getting very worried. Can/should the judge accept this new evidence? It doesnt seem fair or just. In the "appeal of the appeal decision letter my employer sent, it requested the judge reverse the decsion based on this evidence.
-I feel like Im going to have a heart attack if there is no resolution soon. This has been very very difficult for me the past few months, and has been hard to remain strong. I really need some advice here.
-Thanks so much...God bless you for what you do on this site.



Feb 09, 2012
Fighting unemployment with my previous employer
by: bethnesbitt

My previous employer has contracts with NYS and I had no chance in there without a lawyer. I cannot afford a lawyer and no lawyers in my area are doing pro-bono for unemployment cases.

I believe the judge may have added a document to my file after I left. I was denied for misconduct, the reason given was that I admitted to sending an email with profanity to a coworker on 12/5 and was warned. I sent an email to my employer on 12/18 using the "f" word and was discharged for unprofessional behaviour.

I never admitted to sending an email to a coworker using the 'F' word, and never sent one to a coworker using an 'f' word. I have this horrible feeling that the ALJ added a email to the file after I left. After the hearing he told me I could use the back door and thinking it was because he was being nice I did. When I look at the transcript I am going to get copies and if there is any documents in it that were added after my hearing I will fill out a complaint form to the State Commission of Judicial Conduct.

If I do complain about this judge will it help me to have my appeal in front of a new judge?

Also, a week prior to the hearing when I viewed the file there were all these documents added to it that were never shown to me before I was discharged. The employer added a handbook that was submitted after my discharge with new rules and tried saying I broke rules that were not in my original handbook. There was also a note written by two managers that was never shown to me and I never saw them until the hearing. I objected to the notes three times and they left them in the file.

How do I fight this?


Oct 03, 2011
ohio telephone hearing
by: Anonymous

Ohio I was intially denied unemployment but appealled it and was granted unemployment. Now after this my former employer wanted a redetermination which again i was ganted my benefits then i received a letter saying that my former employer was requesting a telephone hearing now i was fired after being employed for over a year and in that year i was never in trouble for anything and then during my last month of employment i was written up 3 times and fired the first write up was for not putting interventions in a patients chart which i had no idea we were supposed to do that the next write up was for accidentally leaving a sec tion of an incident report blank but the information was in one of the other 3 places it was supposed to be so i could have just looked back and wrote it in the third and final write up was for not doing a tube feeding in the alotted time to be in compliance which was also a mistake now i had my telephone hearing and i feel like i was being fired all over again. i don't think it went well but i did let them know that i did not intentionally hurt the company and even now 3 months later i am still very upset because i did my job and went to work and do not agree with getting fired everything that happened was truly human error i just don;t know how they can say i did willful misconduct please let me know what you think thank you.




Have you received the hearing decision yet? I wouldn't even want to guess how it turns out because I don't know how well you represented yourself or how you attempted to rebut that any of the incidents when viewed in isolation would rise to a level considered misconduct ..

But it is the sum total of all of them that an employer would argue amount to an attitude which shows it was a general attitude of negligence causing the poor performance.

This is why I recommend reps for hearings .. because many times, it's all contingent upon the quality of what might be seen as an argument of technicalities that is presented on your behalf.


This is not to say that there aren't some cases of misconduct that are so blatantly easy to disprove that a person wouldn't be able to handle it themselves .. but from my perspective those are the cases where an employer is blatantly ignorant of how unemployment works themselves, but can always be counted on to answer a question truthfully and without no what an employer should never say while giving testimony.


If you're still there .. tell me this .. what impression did you get from the hearing officer?



Sep 29, 2011
Thank You Chris
by: TRIN

Chris

Thank you for the information, and you right I do not know how to write an affirmation letter. Maybe you could recommend some one that can help me.
For they had some one there to represent them and did have the opportunity to present their evidence and testimony.



The hearing reps I refer everyone to are capable of writing affirmations .. if you really think it is necessary.


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