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LOU E. DUPREY v. COMMONWEALTH PENNSYLVANIA (10/15/79)

decided: October 15, 1979.

LOU E. DUPREY, 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 Lou E. Duprey, No. B-150700.

COUNSEL

Salli A. Swartz, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Macphail

[ 46 Pa. Commw. Page 470]

Lou E. Duprey (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) denying benefits to her. We reverse the Board.

Initially the Bureau of Employment Security granted benefits to Claimant. Richard Textiles (Employer) appealed and, after two hearings before a referee (the second being a remand hearing) the Board affirmed the referee's denial of benefits and adopted the referee's findings and reasoning that the Claimant voluntarily quit her employment without cause of a necessitous or compelling nature.

From a record that is confusing and which contains "inaudibles" at crucial points in the testimony, a practice which we strongly condemn, we ascertain the following pertinent facts. Claimant was employed as an inspector for her Employer on November 19, 1975. In May of 1976, she sustained a work-related injury. When her physician advised her that she should avoid lifting and other strenuous tasks, she asked her Employer for different work. Her Employer obliged by changing her job to that of a "unifill girl." While that job did not require lifting, it did require considerable walking and standing on concrete floors. Claimant again consulted her physician

[ 46 Pa. Commw. Page 471]

    about her physical discomfort and he diagnosed her condition as moderate to severe varicose veins of the lower extremities. While the record is not entirely clear, it appears that Claimant did work irregularly until January 10, 1977. Claimant testified that at her physician's instructions, she informed her Employer on January 17, 1977 that she would have to take a few weeks off due to her physical problems. The person who answered the phone apparently relayed that information to Claimant's supervisor. Later that week the Employer's representative called Claimant to tell her that before she returned to work she would have to have a physician's statement stating that she would be able to work on a regular basis. At that point Claimant secured a statement from her physician stating that Claimant should be excused from work from January 24, 1977 indefinitely and that she "should apply for disability and be seen by vocational rehabilitation." Claimant presented that statement to her Employer and did not return to work thereafter. The physician's statement was admitted as an exhibit in this case without objection.

The referee and the Board found that (1) Claimant voluntarily quit her work on January 10, 1977, (2) that she did not provide competent medical certification that she was advised to quit her employment prior to her termination thereof, (3) that she did not request alternate employment and (4) that "continuing work" was available had Claimant chosen to remain.

It is so well established that it hardly bears repeating that the findings of the referee and Board, if supported by substantial evidence and in the absence of fraud, are conclusive on us. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 318 A.2d 398 ...


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