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BERNARD J. KUNZ v. COMMONWEALTH PENNSYLVANIA (05/12/80)

decided: May 12, 1980.

BERNARD J. KUNZ, 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 Bernard J. Kunz, No. B-171863.

COUNSEL

John D. Maida, for appellant.

Stephen Lipson, with him James Bradley, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Rogers

[ 51 Pa. Commw. Page 283]

Bernard J. Kunz has appealed from a decision of the Unemployment Compensation Board of Review, affirming a referee's decision disqualifying him from benefits for a penalty period of nine weeks pursuant to Section 801(b) of the Unemployment Compensation Law (the Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 871(b), which provides in relevant part:

(b) Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for

[ 51 Pa. Commw. Page 284]

    not more than one additional week for each such week of improper payment. . . .

Kunz was employed by James J. Skelly, Inc. as an oiler from April 1978 until August 1978. In June of that year, Kunz injured his back on the job and missed five days of work. When he returned to work he was instructed, apparently by Skelly's workmen's compensation representative, to have his back examined by a medical doctor and an appointment was made for August 10, 1978. Kunz also began receiving treatments from a chiropractor and he continued to work until August 2, 1978, when he was laid off because of a lack of work. He applied for unemployment compensation benefits, which were granted beginning the week ending August 12, 1978. He did not report his back injury or his chiropractic treatments to the unemployment compensation authorities.

On August 10, 1978, Kunz visited the medical doctor, as instructed, and began receiving treatment from him while continuing his chiropractic treatment. On September 26, 1978, he told a claims examiner at the local employment security office that the physician had found him unable to work. The Bureau (now Office) of Employment Security thereafter determined that Kunz had not been able or available for work as required by Section 401(d) of the Law, 43 P.S. § 801(d) and declared a fault overpayment in the amount of $917.00 for the weeks ending August 12, 1978 through September 23, 1978 pursuant to Section 804(a) of the Law, 43 P.S. § 874(a). Kunz repaid the $917.00 without appealing either decision.*fn1

On October 31, 1978, the Bureau issued another determination penalizing Kunz ...


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