Paolucci v. Unemployment Compensation Board of Review

118 A.3d 1233, 2015 Pa. Commw. LEXIS 263

• Court: Commonwealth Court of Pennsylvania
• Decided: June 19, 2015
• Status: Published

Opinions

OPINION BY

Judge MARY HANNAH LEAVITT.

Elizabeth Paolucei (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits for the stated reason that she committed willful misconduct, which rendered her ineligible under Section 402(e) of the Unemployment Compensation Law.¹ In this case of first impression, we consider what happens when a disabled employee’s assertion of her rights under the Workers’ Compensation Act² is construed by her employer as violating the standards of behavior it can reasonably expect of its employees. We conclude that, where an employee is on workers’ compensation disability, the determination of whether her employer’s expectations for her behavior are reasonable is governed by the standards of the Workers’ Compensation Act. The Board’s findings of fact do not support its legal conclusion that Claimant violated a reasonable expectation of Employer and, accordingly, we reverse.

Background

Claimant worked for Wal-Mart Associates (Employer) from December 7, 2007, through August 4, 2011, most recently as an inventory management specialist supervisor. On July 17, 2010, she sustained a brain concussion when shelving collapsed on her head. Employer filed a Notice of Compensable Payable (NCP) with the Bureau of Workers’ Compensation that described Claimant’s work injury as a concussion, for which it was paying total disability in the amount of $422.50 per week. Certified Record Item No. 10, Claimant Exhibit # 1 (C.R. No. -, # -). In November of 2010, Claimant saw her two treating physicians; neither cleared her to return to work. C.R. No. 5, # 6; C.R. No. 10, # 2.³ In December of 2010, Claimant attended an independent medical examination (IME) at the request of Employer. The IME physician opined that Claimant was recovered from her concussion and could return to work to her pre-injury job with no restrictions. Upon receiving the IME report in January 2011, Employer’s Store- Manager, Henry Wolfe, called Claimant about several jobs. Claimant’s attorney responded to those calls. Counsel reminded Wolfe that he represented Claimant with respect to her workers’ compensation benefits and that he had previously advised Wolfe that communications to Claimant should be made to her counsel. Notes of Testimony, 3/28/2012, at 13 (N.T. -). Claimant’s attorney also advised Wolfe that Claimant disputed the IME report that she was capable of working without restrictions. Id. at 14. Employer then instituted a workers’ compensation proceeding to terminate, modify or suspend Claimant’s workers’ compensation disability benefits.

On July 11, 2011, in the course of the workers’ compensation proceeding, Employer deposed Claimant. In that deposition, Claimant testified that neither of her two treating physicians had released her to return to work and that they were still evaluating her condition.⁴ She also testified that she was not capable of returning to work as an inventory management supervisor because the job required bending over to pick up large heavy boxes and climbing ladders. Her concussion had left her with impaired focus and poor balance. Further, Claimant’s pre-injury job was very fast-paced and stressful, which she could not handle, given her limitations. However, she volunteered her personal belief that she could do the job of a food inspector, a less stressful and slower-paced position. She had previously held this position with Employer. Employer did not respond to Claimant’s statement that she could do a light duty job with a job offer, and Claimant continued to collect total disability compensation in accordance with the NGP. .

On August 4, 2011, Employer discharged Claimant without written or oral explanation. She did not learn of her discharge until Merrill Lynch contacted her regarding administration of her 401(k) plan. On September 22, 2011, the parties settled their workers’ compensation dispute. On October 9, 2011, Claimant applied for unemployment compensation benefits. In response, Employer’s representative, TALX, advised theTJC Service Center in its written questionnaire that Claimant had “voluntarily quit” her employment. C.R. No. 4, # 10, ¶ 5. TALX also stated on the questionnaire that Claimant did not advise Employer of “his/her health limitation's.” Id at ¶7. TALX left blank the question “Did you offer- other work' to the Claimant?” Id. at ¶8. It also left blank the directive to “explain why the work [within the claimant’s limitations] was not offered to the claimant.” Id. TALX responded “no” to the question “Did the claimant refuse the offer of other work?” Id. at ¶ 9.

The UC Service Center denied benefits for the stated reason that Claimant “has not been released to return to work by her doctor” and, thus, was not available for work. C.R. No. 6, Finding of Fact No. 5. Claimant appealed.

First Referee Hearing

A hearing on Claimant’s appeal took place on December 28, 2011. Although TALX had received notice of the hearing, it did not appear. . Nor did it contact the Referee that it would not attend the hearing.- Claimant appeared and presented evidence.

Claimant presented evidence that she was available for work as of the date of her October 9, 2011, application for unemployment compensation. First, she presented four pages from her workers’ ’ compensation deposition in which she stated her belief that she could do the job of a food inspector. That deposition took place on July 11, 2011, well before her application for unemployment compensation. Second, she presented a note from her neurologist dated December 21, 2011, stating that Claimant could return to work. On December 28,2011, the Referee issued a decision with the following Findings of Fact:

1. The Claimant worked fulltime as Inventory Control Supervisor for Wal-Mart Associates from December 7, 2007 through August 4, 2011 at a final rate of $14.55 per hour.

2. On July 17, 2010, the Claimant suffered a work related head injury resulting in brain concussions.

3. As a result of the injury, the Claimant could not carry out her regular duties.

4. The Claimant remained in doctor’s care until July 11, 2011.

5. From July 11, 2011⅛ the Claimant was able and available for some kind of work.

C.R. No. 11 at 1. The Referee awarded Claimant unemployment compensation as of October 15,2011.

On January 6, 2012, TALX appealed to the Board and requested a new hearing. It explained that-its witness, Henry Wolfe, became ill with pneumonia and could not participate in the Referee’s hearing. The Board ordered a remand to the Referee, following which the Board would determine whether Employer had good cause for not attending the hearing on December 23, 2011, and, if so, address the merits of the case.

Second Referee Hearing

At the remand' hearing, Employer presented evidence that Claimant’s supervisor, Henry Wolfe, had been medically incapacitated at the time of the December hearing. Claimant’s counsel argued that Employer did not present good cause, noting that TALX should have contacted the Referee and requested a continuance. It did neither. Further, TALX offered no evidence that only Wolfe could testify about Claimant’s separation from employment.

The remainder of the remand hearing concerned Claimant’s eligibility for unemployment compensation. The parties stipulated that Claimant did not voluntarily quit, as Employer had stated in its questionnaire. Rather, Employer discharged Claimant on August 4, 2011, while she was collecting total disability workers’ compensation benefits.

On the merits, Wolfe testified that Employer terminated Claimant because she did not return to work from “her Workers’ Comp leave of absence” after she was cleared to do so by Employer’s IME physician in December 2010. N.T., 3/23/12, at 5.⁵ Wblfe then stated that “we had made several attempts to contact [Claimant] to let her know that we had positions available for her and they were intercepted by her attorney.” N.T., 3/23/2012, at 5-6. Wolfe also stated that Claimant did not return Employer’s

phone calls or any of our letters [letting her] know that we had positions available for her. And due to that reason, we have no — we waited several months after that occurrence before ice actually separated her.

Id. at 6 (emphasis added). Claimant’s Counsel asked Wolfe whether Employer had offered Claimant any employment after July 11, 2011,. but he did not answer the question. Id. at 9-10. Instead, Wolfe demurred, stating that Claimant “could have” returned to work because “[s]he was still employed.” Id. at 10. Finally, Wolfe acknowledged that Employer “never received any documentation from [Claimant’s] treating physician” that she could work in any capacity. N.T. 3/23/12 at 14.

Claimant confirmed her workers’ compensation deposition testimony! In that testimony she explained that she did not agree with the IME report that she was capable of returning to her prior position in December of 2010; indeed, she did not believe she could do any job at that time. By the time of Employer’s deposition of her on July 11, 2011, she still did not believe she could do her pre-injury job as inventory control specialist. However, in response to Employer’s question about whether she could return to any kind of employment, she answered that it was possible that she could do the job of a food inspector.

The Board held, first, that Employer had good cause not to appear at thé first Referee hearing.⁶ The Board then addressed the merits of Employer’s appeal.

The Board adopted the first five Findings of Fact in the Referee’s Decision of December 28, 2011, and added eight new findings:

6. The claimant could have worked in a light duty position for.the employer as of July'll, 2011.

7. The employer did send the claimant letters and did make phone calls •that were not returned when the employer’s physician indicated that the claimant could work.

8. Then the [claimant’s] attorney told the employer to not directly contact the claimant.

9. The claimant entered into a workers’ compensation agreement on September 22, 2011.

10. The claimant did not voluntarily resign as part of the agreement.

11. The claimant had already been discharged at the time that' she entered into the workers’ compensation agreement.

12. The claimant was discharged because she failed to contact the employer when she became able to work.

13. The claimant is able and available for work as of July 11, 2011.

Board .Adjudication at 1-2, Findings of Fact No. 6-13. Based on its findings.of fact, the Board concluded that Claimant was ineligible for unemployment compensation by reason of willful misconduct. It reasoned as follows:

The claimant never made the employer aware that she could return to work. Further, the claimant did not respond to the employer’s offer of work. Finally, the claimant’s attorney told the employer to no longer contact the claimant.

Board Adjudication at 3. The Board did not cite a work rule or policy that was violated by Claimant. At oral argument before this Court, the Board explained that Claimant’s willful misconduct consisted of her failure to meet a reasonable expectation of Employer.

Claimant petitioned for this Court’s review.⁷ On appeal, she raises two issues. First, she argues that substantial evidence does not support the Board’s finding that Employer offered Claimant a job after July 11, 2011, let alone that Claimant refused to respond to such an offer. Second, Claimant contends that the parties in the workers’ compensation proceeding communicated through their attorneys and in no way did Claimant’s or her counsel’s conduct in the workers’ compensation proceeding constitute willful misconduct.

Willful Misconduct

To prove willful misconduct, the employer must show that the employee violated a policy, work rule or reasonable expectation of employer. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07 (Pa.Cmwlth.2011). Employer presented no evidence of a policy or work rule that Claimant allegedly violated. The Board’s finding of willful misconduct hinges on whether Employer had a “reasonable expectation” that Claimant violated.

A reasonable expectation of employee conduct may vary from case to case, ie., standards that are expected by one employer may not be the standards of another employer. Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867, 868 (1975). Generally, this Court has categorized conduct that involves “a knowing falsehood or misrepresentation to an employer by an employee concerning an employee’s work” as a disregard of an expected standard of behavior. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 256 (Pa.Cmwlth.2004) (quoting Groover v. Unemployment Compensation Board of Review, 134 Pa.Cmwlth. 617, 579 A.2d 1017, 1019 (1990)). Examples of substandard behavior include: lying to a supervisor that a telephone call needed to be made due to an emergency and a misrepresentation on an employment application that the employee had a college degree. See Groover, 579 A.2d at 1020.

Analysis

In her first issue, Claimant contends that the record does not support the Board’s finding of fact that she was offered a job after July 11, 2011, the first date on which the Board found her capable of doing “some kind of work.” Wolfe acknowledged that his attempts to contact her about available jobs were made “several months ... before we actually separated her.” N.T., 3/23/2012, at 6. We agree with Claimant that there is no evidence that Wolfe attempted to contact Claimant, directly or by her counsel, about a job after July 11, 2011.

The Findings of Fact are not in chronological order. The Board simply added Findings of Fact No. 6-13 to Findings of Fact No. 1-5 made in the Referee’s first decision. Claimant argues that there is no substantial evidence that the “letters” and “calls” to Claimant made by Employer took place after July 11, 2011. Claimant is correct. The contacts took place in January of 2011, at a time when Claimant did not believe she could do any job. In sum, we agree with Claimant that Employer did not present any evidence that it ever offered her a job after July 11, 2011.

The Board sidesteps the question of when Employer contacted Claimant about available jobs. It contends that when Claimant “released” herself to work at some kind of job, her absence from work immediately became unexcused. In support, the Board relies upon Oliver v. Unemployment Compensation Board of Review, 69 Pa.Cmwlth. 98, 450 A.2d 287 (1982) (holding that the claimant committed willful misconduct when she did not return to work at the end of her leave and did not comply with her employer’s notification policy). Here, there is no relevant work rule or policy, assuming one could be adopted with respect to a workers’ compensation claimant that did not strictly adhere to the Workers’ Compensation Act. Notably, on the questionnaire it submitted to the Bureau of Unemployment Compensation Employer' left blank the question of whether it offered her a job within her limitations; further, Employer expressly acknowledged that Claimant did not refuse a job offer. C.R. No. 4, # 10, ¶¶ 8, 9.

Nevertheless, the Board argues Claimant did not meet a reasonable expectation of Employer because she did not appear at work on July 12, 2011.⁸ The Board explains:

Similarly here, Claimant was absent after she was released to return to work. Claimant never notified Employer that she planned to return to work. Further, Claimant did not respond to Employer’s .offers of work. Claimant had no good cause for her failure to notify Employer that she could return to work. Therefore, as Claimant had no good cause for her absence from work after she. was released to return to work, her. absence rose to the level of willful misconduct.

Board’s Brief at 11 (emphasis added). The Board takes Claimant’s statement at her deposition to be a “release” to return to work, which is a novel use of the term. A “release” to return to- work is issued by a physician, as was the case in Oliver, 69 Pa.Cmwlth. 98, 450 A.2d 287, which the Board cites in its brief.

■ First, lest there be any doubt, Claimant was “released,” not by her physician, but by the physician engaged by Employer, which sought to end Claimant’s total disability compensation. The IME physician’s release is irrelevant. Claimant disputed that opinion, as was her right under the Workers’ Compensation Act.⁹ An.employer’s allegation of full recovery is the first step, not the last, in evaluating whether a claimant is able to work in any capacity and, thus, subject to a termination, suspension or modification of her workers’ compensation disability.

Second, Claimant, by her attorney, did respond to the offers of work referenced in Finding of Fact No. 7 that were made in early 2011. Claimant’s attorney advised Employer that Claimant disputed the opinion of Employer’s IME physician and that she had not yet been cleared by her own physician to work. N.T., 3/23/2012, at 14. Claimant’s attorney did not forbid communication between Employer and Claimant. Wolfe acknowledged that Claimant’s attorney stated thát Employer could communicate with Claimant, at any time through counsel. Id. at 13. Wolfe explained that he did not communicate with Claimant’s attorney about jobs because he did not consider him to be a reliable source of information about Claimant, unlike “our physicians [who] said that she was able to work.” Id. at 14.¹⁰

Third, Employer did not offer any evidence about the nature of the jobs Wolfe had in mind in early 2011 when he contacted Claimant (and spoke to her attorney). Employer had two opportunities to make a record on whether it had any light duty positions.for Claimant, at any time period. Simply, there is a, disconnect between the Board’s finding that Claimant could do “some kind of work” on July 11, 2011, and the Board’s conclusion that she “did not respond to the employer’s offer of Work.” Board Adjudication at 3.¹¹ The only jobs ever offered by Employer were made in early 2011 at a time Claimant believed she was not able to work in any capacity. N.T., 12/23/2011, at 7.¹²

The Board is wrong that Claimant had to report to work on July 12, 2011. There is no evidence that Employer contacted Claimant about a light duty job after July 11. 2011, as was its duty under the Workers’ Compensation Act.

The Workers’ Compensation Act governs the reasonable expectations of an employer with respect to an employee receiving workers’ compensation. Section 311.1 of the Act requires a claimant “receiving compensation” to report any wages' earned within 30 days of their receipt.¹³ 77 P.S. § 631.1(a)(2), (b) (stating that the “employee shall report ... [a]ny wages from such employment or self-employment ... no later than thirty days after such employment or self-employment occurs”). The Act does not require an employee “receiving compensation” to report a recovery from the'work injury. However, Section 311.1(d) of the Act allows an employer to request a claimant to report on the. state of her physical condition.¹⁴ 77 P.S. § 631.1(d). The Act makes it the employer’s duty to seek this information, not the claimant’s duty to volunteer it. The employer must also provide the claimant with the necessary forms to provide information requested under Section 311.1(d) of the Act. 34 Pa.Code § 123.501.¹⁵

Here, there is no evidence that Employer, ever requested Claimant to verify her physical condition in accordance with Section 311.1(d) of the Act, 77 P.S. § 631.1(d). Had Employer done so, Claimant would have had 30 days to complete the verification form and return it. 77 P.S. § 631.1(e). Assuming Claimant had been given the form on July 11, 2011, she would have had until August 10, 2011, to complete it and return it to Employer. However, Claimant was fired on August 4, 2011, well before that deadline.

When an employer receives information that the claimant can do some type of work, the employer has the burden of producing evidence that work within the claimant’s limitations is actually available for the claimant. Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Memorial Hospital), 560 Pa. 439, 746 A.2d 101, 104 (2000). Section 306(b)(2) of the Workers’ Compensation Act mandates that if the employer has a job that the claimant is capable of performing, the employer must offer that job to the claimant. 77 P.S. § 512(2).¹⁶ The employer typically does so by providing the claimant with a job referral letter informing her that it has an available position within her capabilities and requesting that she return to work. Eidem, 746 A.2d at 104-05. Employer did not offer Claimant a light duty job; it did not request that she return to work.¹⁷

Finally, Claimant did not “fail” to tell Employer what she said in her July 11, 2011, deposition. She related this information, under oath, in response to the questions posed by Employer’s own attorney.¹⁸ As noted in Eckman v. Erie Insurance Exchange, 15 Pa. D. & C. 5th 55, 60 (2010), affirmed, 21 A.3d 1203 (Pa.Super.2011), when “a liability insurer retains a lawyer to defend an insured, the insured is considered the lawyer’s client.” (quoting Point Pleasant Canoe Rental, Inc. v. Tinicum Township, 110 F.R.D. 166, 170 (E.D.Pa.1986)).¹⁹

It was not reasonable for Employer to expect Claimant to convey information already known by, or related to, Employer in her workers’ compensation deposition. It was not reasonable for Employer to expect Claimant to disregard her attorney’s instructions that he would be the point person in communications with Employer about her workers’ compensation. Finally, it was not reasonable for Employer to expect Claimant to report to work on July 12, 2011, as argued by the Board.²⁰ Rather, it was Employer’s duty to respond to Claimant’s statement that she could do some kind of work with a job offer. It did not do so.

For these reasons, we reverse the adjudication of the Board.

ORDER

AND NOW, this 19th day of June, 2015, the order of the Unemployment Compensation Board of Review, dated May 22, 2012, is REVERSED.

1 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work[J” 43 P.S. § 802(e).

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

3 . The UC Service Center’s oral interview stated as follows:

[M]y doctors said I needed to rest and heal for a year or two before all the symptoms would clear up.... The last time I went was November 2010, and they said time would heal the symptoms from the injury.

C.R. No. 5, # 6.

4 .One page of Claimant’s deposition transcript was introduced as evidence at the first unemployment compensation hearing. C.R. No. 10, #2. The questions were those of Employer’s counsel. N.T., 12/23/2011, at 7.

5 . Wolfe stated: "[Claimant] is no longer employed with us is (sic) because she didn’t return from her Workers' Comp leave of absence." N.T. 3/23/13 at 5. Workers’ compensation disability leave ends by adjudication or settlement. Claimant’s workers’ compensation disability leave ended by settlement on September 22, 2011. At that point, she had already been discharged.

6 . Claimant did not appeal that ruling.

7 . Our review determines whether the findings of fact are supported by the evidence, whether constitutional rights were violated, or whether errors of law were committed. Pollard v. Unemployment Compensation Board of Review, 798 A.2d 815, 816 n. 3 (Pa.Cmwlth.2002).

8 . It has been held that an employer can reasonably expect an employee to return to work after medical leave has ended. In Geesey v. Unemployment Compensation Board of Review, 33 Pa.Cmwlth. 376, 381 A.2d 1343 (1978), this Court held that an employee committed willful misconduct when he did not tell his employer that he had recovered from surgery for which he had been granted medical leave. We reasoned that an employer has the right to expect an employee "who is on sick leave to report back to work when cleared to do so by his physician or at least to notify his employer of his reasons for failing to return.” Id. at 1344 (emphasis added).

This case is distinguishable from Geesey. Wolfe acknowledged that Employer had not received "documentation” from Claimant’s “treating physician” that she could work in any capacity, N.T. 3/23/12 at 14. More to the point, Claimant notified Employer at her deposition why she could not return to her pre-injury job. Finally, Claimant’s workers' compensation "leave” did not terminate until September 22, 2011, by which time she had been discharged.

9 . It is for a • Workers’ Compensation Judge (WCJ) to determine whether an IME report of an employer’s physician is competent and credible. See, e,g., Inservco Insurance Services v. Workers’ Compensation Appeal Board (Purefoey), 902 A.2d 574, 578 n. 2 (Pa.Cmwlth.2006) (noting that a WCJ, in the role of factfinder, determines the credibility of a medical expert who has offered an IME report thát the claimant has recovered).

10 . .In any case, the communication responsibilities of both employer and claimant are a matter governed by the Workers’ Compensation Act. Employer responded to Claimant’s "non-response" by seeking to terminate, suspend or modify her disability compensation.

11 .The Board did not'make a specific factual finding that Claimant "did not respond to the employer’s offer of work.” Rather, it found as follows:

The employer did send the-claimant letters and did make phone calls that were not returned when the employer's physician indicated that the claimant could work.

Board Adjudication, Finding of Fact No. 7. The “when" of these calls- was January of 2011, long before July 11, 2011, the date on which the Board found Claimant was able to work at some kind of job.

12 . However, even this is contrary to the statement on Employer’s questionnaire that Claimant did not refuse an offer of work. C.R. No. 4, # 10, ¶ 9.

13 . Section 311.1 was added by the Act of June 24, 1996, P.L. 350. It provides, in relevant part:

(a) If an employe ... is receiving compensation under section 306(a) or (b), the employe shall report, in writing, to the insurer the following:

* * *

(2) Any wages from such employment or self-employment.

(b) The report referred tq in clause (a) must be made as soon as possible but no later than thirty days after such employment or self-employment occurs.

77 P.S. § 631.1(a)(2), (b).

14 . Section 311.1 also states, in relevant part, as follows:

(d) If an employe ... is receiving compensation under section 306(a) or (b), the insurer may submit a verification form to the employe either by mail or in person. The form shall request verification by the employe that the employe’s status regarding the entitlement to receive compensation has not changed and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and change in physical condition ....

(e) The employe is obligated to complete accurately the verification form and return it to the insurer within thirty days of receipt by the employe of the form. However, the use of the verification form by the insurer and the employe's completion of such form do not relieve the. employe of obligations under clauses (a), (b) and (c).

77 P.S. § 631.1(d), (e) (emphasis added).

15 .The regulation provides:

An insurer shall notify the employe of the employe’s reporting requirements under sections 204 and 311.1(a) and (d) of the act (77 P.S. §§ 71 and 631.1(a) and (d)). In addition, the insurer shall provide the employe with the forms required to fulfill the employe's ' reporting and verification re■quirements under section 311.1(d) of the act. ■

34 Pa.Code § 123.501.

16 . Section 306(b)(2) states, in relevant part, as follows:

Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe’s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. ... If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe.

77 P.S. § 512(2) (emphasis added).

17 . The dissent cites Homony v. Unemployment Compensation Board of Review, 11 Pa.Cmwlth. 142, 312 A.2d 77 (1973), for the proposition that an employee must maintain contact with the employer during a prolonged medical leave. Homony is inapposite.

Homony involved an employee who went on sick leave for a medical condition that was not work-related. The employee did not contact the employer at any time during, or after, his sick leave of five months. By contrast, here, Claimant was on workers’ compensation disability. Further, Claimant’s workers’ compensation disability “leave” did not end until September 22, 2011. Because Claimant and Employer were involved in a workers’ compensation proceeding, they were in regular contact.

18 . The dissent cites Washington v. Unemployment Compensation Board of Review, 94 Pa.Cmwlth. 404, 503 A.2d 1055 (1986). In that case, an employee did not return to work after his leave ended. It was a voluntary quit case, and this Court remanded for additional factual findings on the “vital question of whether Claimant informed Employer of his medical condition.” Id. at 1056. In Crawford v. Unemployment Compensation Board of Review, 71 Pa.Cmwlth. 592, 455 A.2d 751 (1983), the claimant violated a work rule by not returning to work, as agreed, when his medical leave expired.

In these cases, this Court noted that notice to an insurance company representative is not notice to an employer. Neither case involved a statement made to the employer’s attorney in a workers’ compensation deposition.

19 . The NCP identifies the “Insurer or Third Party Administrator” as CMI of Bentonville, Arkansas. C.R. No. 8, # Cl.

20 . Employer’s stated reason at the hearing for discharging Claimant was that she did not return to work in early 2011, after the IME. N.T. '3/23/11 at 5. Employer stated on the UC questionnaire that Claimant resigned.