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PHILADELPHIA COKE DIVISION v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (06/29/72)

decided: June 29, 1972.

PHILADELPHIA COKE DIVISION, EASTERN ASSOCIATED COAL CORPORATION
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Lawrence Eaddy, Appeal No. B-71-D-23 1971.

COUNSEL

J. Freedley Hunsicker, Jr., with him Drinker, Biddle & Reath, for appellant.

Sydney Reuben, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers.

Author: Crumlish

[ 6 Pa. Commw. Page 39]

This is an appeal by the employer, Philadelphia Coke Division, from the award of benefits to Lawrence Eaddy (Claimant) by the Unemployment Compensation Board of Review.

Claimant had been working as a belt man until October 8, 1970 when he suffered a job related injury causing him to be absent until October 19, 1970. On December 7, 1970, claimant again left work complaining of a recurrence of pain from the October 8th injury. On December 8th, he saw the employer's doctor who advised him to remain away from work.

Claimant saw the company doctor again on December 18, 1970 and was told then that he was fit to return to work and that he should report back on December 21, 1970. Claimant never did report for work.

There is a difference in explanation of claimant's failure to report. The employer contends that claimant failed to report without having a proper medical excuse and so he was discharged on December 22nd. Claimant argues that the reason for his failure to report on December 21st was that he had been discharged by the employer on December 15th. When the employer's first-aid man, Samuel Ferguson, had called him to inform him of his discharge, no reason was given. Since he had been discharged on December 15th, he assumed he could not report on December 21st.

[ 6 Pa. Commw. Page 40]

Testimony was taken at a hearing on claimant's application for unemployment compensation and the Referee found the claimant guilty of wilful misconduct under the Act of December 5, 1936, P.L. 2897, Art. IV, § 402, as amended, 43 P.S. § 802, and accordingly he was considered ineligible for compensation.

On appeal, the Board, after reviewing the evidence, overruled the decision of the Referee and found the claimant eligible. The Board determined that the claimant was not guilty of wilful misconduct but that the claimant's absences, as medically certified, were due to illness, which were known by the employer.

At the request of the employer, a second hearing was held when the employer reiterated its position. After this reconsideration, the Board affirmed its prior ...


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