Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Antoinette Johnson, No. B-173530-B.
Phillip E. Garber, with him Steven J. Insel, of Counsel: Wolf, Block, Schorr and Solis-Cohen, for petitioner.
William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 68 Pa. Commw. Page 628]
Colonial Beef Company (Colonial) appeals from an Unemployment Compensation Board of Review (Board) benefits award to Antoinette Johnson. We reverse.
Johnson had been discharged on January 5, 1979, for habitually violating Colonial's work rules regarding lavatory use. She was reinstated ten days later after producing a doctor's certification that she had suffered from a urinary tract infection in 1970 and after asserting that she was currently undergoing treatment. Notwithstanding Colonial's warning that a reduction of lavatory time was necessary to maintain employment, Johnson continued the excessive
[ 68 Pa. Commw. Page 629]
lavatory use. Consequently, she was discharged again and applied for benefits.
The referee denied benefits, concluding that Johnson's continued abuse of Colonial's lavatory policy constituted a deliberate violation of the employer's work rules, to wit, willful misconduct under the unemployment compensation law.*fn1 On appeal from the Board's affirmance, this Court, in Johnson v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 469, 422 A.2d 223 (1980), vacated and remanded for a finding as to whether "Johnson's physical condition caused her to be unable to comply with the employer's rules after her reinstatement," that is, from January 15, 1979, until her dismissal on March 12, 1979. Id. at 471, 422 A.2d at 224.
On remand, the Board awarded benefits and found that:
7. The claimant was unable to comply with her employer's policy because she had a urinary infection which forced her to make frequent trips to the lavatory.
Colonial argues, first, that fact finding number seven was made in capricious disregard of the evidence,*fn2 and, second, that Johnson's failure to seek treatment for the alleged ...