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MICHELE WINCEK v. COMMONWEALTH PENNSYLVANIA (01/20/82)

decided: January 20, 1982.

MICHELE WINCEK, 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 Michele Wincek, No. B-165026-B.

COUNSEL

Richard J. Orloski, of Stamberg, Caplan & Calnan, for petitioner.

William Kennedy, Associate Counsel, with him Charles G. Hasson, Associate Counsel, Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Rogers

[ 64 Pa. Commw. Page 202]

Michele Wincek, an employee of a Burger King restaurant in Wilkes-Barre, Pennsylvania, appeals from an order of the Unemployment Compensation Board of Review denying her claim for six weeks of

[ 64 Pa. Commw. Page 203]

    unemployment benefits on the ground that during the period for which compensation is sought she was not "able to work and available for suitable work" within the meaning of Section 401(d) of the Unemployment Compensation Law.*fn1

In June, 1978, claimant approached her superiors at the restaurant and informed them that she was then in the third trimester of her pregnancy and that she had been advised by her attending physician that employment would no longer be free from medical hazard unless it was strictly of a sedentary nature. Claimant's superiors discussed the situation with her and, after reviewing a writing of her physician describing the required limitation and exploring the possibility that the claimant might perform her duties while seated on a stool, it was concluded that strictly sedentary work at the Burger King was not feasible and that the best course to follow was for the claimant to take a leave of absence until after her confinement and then to return to her duties at the restaurant.

The claimant's application for unemployment benefits was denied by the unemployment authorities and an appeal was taken to this Court. In an opinion by Judge Williams we remanded the cause to the Board for further proceedings including a determination, absent from the decision of the Board, of whether the claimant's leave of absence was voluntary or involuntary.*fn2 Following our remand a referee, acting as a hearing examiner for the Board, conducted a hearing at which the claimant and her counsel and a representative of Burger King appeared, evidence on the issue of the voluntariness of the claimant's pregnancy leave was adduced, and on the basis of a determination

[ 64 Pa. Commw. Page 204]

    that the pregnancy leave was directed by the employer and therefore involuntary but that the claimant was not available for work during the period of the leave of absence benefits ...


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