Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Peggy D. Laws, No. B-168630.
Harold I. Goodman, with him Alan L. Phillips and Taylor Aspinwall, for petitioner.
Stephen B. Lipson, Assistant Attorney General, with him William Kennedy, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Rogers, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 426]
Peggy D. Laws has appealed from a decision of the Unemployment Compensation Board of Review affirming in part a referee's decision denying her benefits on the ground that she had been discharged from employment for willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law,*fn1 as amended, 43 P.S. § 802(e). We affirm.
The appellant was employed for aproximately six years as a caseworker for the Pennsylvania Department of Public Welfare. For the last four years of her employment, she was classified as an Income Maintenance Worker II, a position which required her to interview applicants for public assistance in order to determine and verify their eligibility for various assistance programs. One of the normal duties of a caseworker was to make visits to the applicants' homes. For most of her six years as a caseworker, however, the appellant was assigned to a special neighborhood centers program, where only occasional home visits were necessary. In September 1977, the appellant was transferred to a public assistance district office where she was assigned cases which required her to perform regular field work. The appellant objected to this transfer and requested reassignment on the ground that she was unable to perform field work because of arthritis in her left foot. The request was denied and the appellant worked in the district office until April 12, 1978 when she went on an approved medical leave of absence because of recurrent episodes of pain and tightness in her chest, which her physician said were related to the stress and strain of her job. On May 24, 1978, her physician wrote that the appellant was "considered clinically improved for work." The appellant returned to work on June 12, 1978 but when she refused
[ 50 Pa. Commw. Page 427]
to resume her former casework assignment, she was sent home and suspended pending further investigation of her medical condition. She provided additional medical information to the Department and again requested reassignment to a position without field work, offering to take a voluntary demotion in order to achieve this. On July 7, 1978, the Department offered to transfer the appellant to a Clerk II position, in which she would not be required to leave the office. This transfer would have involved a demotion from casework to clerical work and a decrease in annual salary from $14,259.00 to $10,900.00. The appellant refused to accept the assignment to Clerk II and also refused to continue her medical leave of absence and the Department discharged her.
The appellant applied for unemployment compensation benefits*fn2 and the Bureau (now Office) of Employment Security approved her application. The Department appealed the Bureau's decision and a referee, after a hearing at which the appellant appeared without counsel, reversed the Bureau and denied benefits on the ground that the appellant was guilty of willful misconduct for refusing work compatible with her disability and refusing a medical leave of absence. The appellant appealed to the Board of Review which appointed a hearing officer to receive additional testimony. The hearing officer conducted a second hearing, at which the appellant was represented by an attorney, and the Board subsequently found that the appellant was physically unable to perform the field work requirements of a caseworker, that all caseworkers
[ 50 Pa. Commw. Page 428]
are required to do field work and that the appellant refused to accept the offer of a Clerk II position, the only available work compatible with her physical limitations. Based on these findings, the Board reversed the referee's denial of benefits for the period from June 12, 1978 to July 7, 1978, concluding that the appellant's physical condition provided good cause for her refusal to resume her casework assignments during that period. The Board affirmed the referee's denial of benefits for the period following July 7, 1978, concluding that the Clerk II position was suitable work within the meaning of Section 4(t) of the Law, 43 P.S. § 753(t) and that the appellant's refusal to accept the position constituted willful misconduct. This appeal followed.
The appellant first says that the Board erred as a matter of law in failing to determine that the Department discriminated against her because of her physical disability in violation of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq. The appellant failed to raise this issue before the unemployment compensation authorities, despite ample opportunities for doing so. The issue of discrimination is therefore not properly before us on appeal and it ...