Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Carmelo Tapia, No. B-197751.
Robert S. Waldman, for respondent.
Joel G. Cavicchia, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 75 Pa. Commw. Page 549]
Carmelo Tapia has appealed from a decision of the Unemployment Compensation Board of Review, which determined him ineligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law.*fn1 The Board found that the claimant, a bakery worker, abandoned his employment without necessitous and compelling reason when he failed to report to work as scheduled after a six-month period of work-related disability.
The employer's testimony reflects the following version of the events. When the claimant, in late March of 1980, reported that he was able to return to work after a period of disability due to back injury, he was advised that his former position, a supervisory one, was no longer available. He was offered work as a "moulder" or "oven man," which involved moving pans weighing approximately 25 pounds each. The claimant rejected this work due to continuing back pain and the lifting involved in the jobs. Then the claimant was offered a "relief" job called a "filler man" position, which involved much the same work as the moulder and oven man positions, but for shorter periods of time. The claimant, according to the employer, agreed to the filler man position, and agreed that he would be put on the next available work schedule.
[ 75 Pa. Commw. Page 550]
On April 10, 1980, the employer's production superintendent telephoned the claimant and told him to report to work on April 13, 1980. The claimant agreed to report for the filler man job as scheduled. However, the claimant did not report for work on April 13th, and when the foreman telephoned the claimant's home on that date, he was informed that the claimant had returned to Puerto Rico. The employer had no further contact with the claimant until a year later at the referee's hearing in this appeal.
The claimant's version of what occurred diverges sharply from the employer's testimony. He testified that when he advised the employer that he was ready to return to work, he was told that the only work available for him involved working in the oven. He told the superintendent that he was incapable of performing that work due to his back injury. Thereupon, according to the claimant, the superintendent stated that his choices were to either accept the work in the oven or quit. The claimant quit.
As between these two conflicting versions, the Board chose to believe the employer. Specifically, the Board found that the employer offered, and the claimant accepted, a "filler man" position, which was "somewhat lighter" than the oven man job which the claimant rejected due to his back injury. The Board further found that the claimant agreed to report to work on April 13, 1980 to assume the filler man position. Ultimately, the Board found that the claimant voluntarily terminated his employment by not reporting to work as scheduled, and by failing to contact the employer again.
In support of his appeal, the claimant argues that there is no evidentiary basis for the Board's finding that the filler man position was "lighter" than the other positions offered the claimant, and was ...