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JULIAN LOPEZ v. COMMONWEALTH PENNSYLVANIA (11/05/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 5, 1982.

JULIAN LOPEZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Julian Lopez, No. B-193195-B.

COUNSEL

David A. Scholl, for petitioner.

Charles Donahue, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 69 Pa. Commw. Page 567]

The Unemployment Compensation Board of Review by order affirmed the referee's denial of benefits to Julian Lopez. We affirm.

Lopez returned to employment after a seven-week medical leave of absence and was assigned to a different job because his usual position had been phased out. After one half-hour, Lopez claimed that he could not do the job, due to physical problems, and requested lighter work. Following a work ultimatum, he failed to return to his work station and was fired.

The referee concluded that Lopez's failure to return was a voluntary quit under Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1 The Board affirmed the denial, but concluded that Lopez's failure to return to his station amounted to willful misconduct under Section 402(e) of the Law.*fn2

An employee's "[r]efusal of an employer's reasonable work assignment constitutes willful misconduct absent proof by the employee that the refusal was for

[ 69 Pa. Commw. Page 568]

    good cause." Laws v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 424, 430, 412 A.2d 1381, 1384 (1980). Lopez contends on appeal that his alleged physical difficulties constituted good cause for his refusal to accept the new assignment.

Where, as here, the party with the burden of proof*fn3 did not prevail below, our scope of review is limited to determining whether the Board's findings of fact are consistent with one another and with the conclusions of law and whether they can be sustained without capricious disregard of competent evidence. Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 426 A.2d 719 (1981).

The only evidence presented to substantiate Lopez's claim of good cause was his own testimony regarding the physical problems he experienced in executing the assigned task. The Board is the final arbiter of credibility and may even reject uncontradicted testimony, Eduardo v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 424, 434 A.2d 215 (1981). The Board noted here his testimony, hence it cannot be said that its rejection was capricious.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-193195 dated March 12, 1981, is affirmed.

[ 69 Pa. Commw. Page 569]

Amending Order

Now, November 22, 1982, the Order of this Court dated November 5, 1982, is hereby amended to read as follows:

The order of the Unemployment Compensation Board of Review, No. B-193195-B dated July 30, 1981, is affirmed.

Disposition

Affirmed.


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