Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bernard J. Mancini, No. B-163453.
Sanford S. Finder, for appellant.
John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General for appellee.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 267]
Bernard J. Mancini (Claimant) has filed this appeal from an Unemployment Compensation Board of Review (Board) order affirming the referee's decision which found Claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e)*fn1 and liable under Section 404 of the Law, 43 P.S. § 804(b) for a non-fault overpayment. We reverse.
Claimant was employed at Jones & Laughlin Steel Corporation (Employer) as a draftsman-chainman on March 31, 1977 when he suffered a compound fracture to his left index finger during the course of his employment. The Claimant received workmen's compensation benefits due to this injury. In August of 1977, Dr. Halin, who had testified for the Employer during the workmen's compensation proceedings, cleared the Claimant to return to work. Thereupon, the Employer
[ 50 Pa. Commw. Page 268]
filed a Termination Petition and a hearing was held. The referee denied the petition, but suspended benefits and ordered Claimant to return to work on a rehabilitative basis and to determine the effect of the injury on the Claimant's earning power and earnings. That order was dated February 21, 1978 and Claimant filed an appeal therefrom which apparently has not yet been resolved.
On March 14, 1978, the Employer directed Claimant to report for work on March 16, 1978. Claimant did so and was returned to his previous position, which required the use of his left hand. On March 17, 1978, Claimant experienced pain and stiffness in his injured finger and went to see his family doctor, who advised him to stop working. On Monday, March 20, 1978, Claimant's wife reported him off work for March 20 and 21 due to the condition of his finger.
On March 22, 1978, Claimant reported for work. A medical certification had been prepared by his physician, Dr. Schor, to substantiate the absences of March 20 and 21. At the hearing before the referee, the Employer's representative acknowledged that this certification had been received, but Employer refused to accept it as justification for Claimant's absences. Employer informed Claimant that a final warning would be issued that continued absences would result in termination. This written warning did issue on March 23, 1978.*fn2
Claimant reported off on March 23, 1978 and was told by his supervisor to ...