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SYRIL N. KIRILUK v. COMMONWEALTH PENNSYLVANIA (03/13/79)

decided: March 13, 1979.

SYRIL N. KIRILUK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Syril N. Kiriluk, No. B-137181.

COUNSEL

James L. Liberto, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 41 Pa. Commw. Page 230]

Syril N. Kiriluk (Claimant) appeals the decision of the Unemployment Compensation Board of Review (Board) affirming the referee's decision denying him benefits.

[ 41 Pa. Commw. Page 231]

Claimant had been employed by Westinghouse Electric Corporation for approximately ten (10) years at the time of his last day of work on May 11, 1976. The Bureau of Employment Security (Bureau) found that Claimant had been discharged for willful misconduct.*fn1 After a hearing the referee affirmed the Bureau's decision and concluded that Claimant was discharged for misrepresentation of facts and his overall work record. Although the Board found that Claimant was discharged for misrepresentation of facts and his overall work record, it is apparent to us that without the alleged misrepresentation, Claimant would not have been discharged for his overall work record.*fn2

The incident which led to the charge of misrepresentation of facts is unusual. On May 7, 1976, Claimant reported to the employer's nurse that he sustained a nose injury while working. Claimant was referred by the nurse to the medical director, who diagnosed a possible nose fracture. When the company's nose specialist could not be located, Claimant was referred to his own physician, Dr. Moman, who recommended corrective surgery. When Claimant returned to work

[ 41 Pa. Commw. Page 232]

    on May 11, 1976, he and his supervisor had a conversation regarding the place where his injury had occurred, and as a consequence of that conversation Claimant was discharged.

At the hearing before the referee, Claimant, his witness, Mr. Tarbuck, Mr. Lenart (the employer's employee-relation assistant) and Mr. Nickl (supervisor of personnel relations for the employer) testified. None of the witnesses except Claimant had first-hand knowledge of how the accident occurred or how it was reported. The nurse, medical director, Claimant's supervisor and Dr. Moman were not called to testify, although Lenart offered to have the case continued so that Claimant's supervisor could testify. Since there was no continuance, we assume that the referee found such testimony unnecessary.

Claimant testified that he bumped his nose at home the night before May 7. While at work on the seventh he dropped a claw hammer in a metal bin, as a consequence of which the hammer bounced up and hit him in the nose at the very same place that he had bumped it the night before. He said that he explained this ...


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