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EFIM KRENTSEL v. COMMONWEALTH PENNSYLVANIA (02/14/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 14, 1984.

EFIM KRENTSEL, 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 Efim Krentsel, No. B-200912.

COUNSEL

Joseph Berenholz, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 80 Pa. Commw. Page 307]

Efim Krentsel (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which found him ineligible for unemployment compensation benefits due to willful misconduct.

[ 80 Pa. Commw. Page 308]

    on July 27, 1981 or be discharged. Claimant became verbally abusive at the meeting and indicated that he would not comply with the superintendent's order. The referee found, based on substantial record evidence, that Claimant failed to report to the medical department on July 27 and that his subsequent discharge was due to willful misconduct. The Board affirmed based on the referee's findings and the instant appeal followed.

The referee's findings, as summarized above, would appear to support the legal conclusion that Claimant's conduct constituted willful misconduct. An employee's refusal to comply with a reasonable order of his employer can constitute willful misconduct. Kresge v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 78, 405 A.2d 1123 (1979). In order to avoid such a finding, Claimant must establish good cause for his actions. Id. When the actions of an employee are justifiable or reasonable under the circumstances, a finding of willful misconduct cannot stand. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976).

In the instant case, Claimant contends that although he did not report directly to SEPTA's medical department on July 27, he was examined by another doctor on that day. Our review of the hearing transcript in this case has been hindered by the appearance of numerous "inaudibles" in the transcript and by the fact that Claimant, a recent Russian immigrant, was not represented by counsel at the referee's hearing and does not yet possess full command of the English language. We are able to glean from Claimant's testimony, however, that he was examined on July 27 by a Dr. Kodroff, who apparently was the

[ 80 Pa. Commw. Page 310]

    physician chosen by SEPTA to treat Claimant following his assault in November, 1980.*fn1 Claimant testified that following the district superintendent's order to be examined on July 27, Claimant went to Dr. Kodroff, rather than his family doctor, for an examination. In fact, the record does contain a note signed by Dr. Kodroff and dated July 27, 1981.*fn2 The note states as follows: "Patient under our care for Diabetes Mellitus. (Glucose today 400) For proper management patient may not work at night." (Emphasis in original.)

Neither the referee nor the Board made any findings regarding Dr. Kodroff's note or Claimant's testimony concerning his medical examination on July 27. Since this evidence raises the issue of good cause for Claimant's failure to report directly to SEPTA's medical department, we conclude that a remand is in order for further findings. When the issue of good cause is raised, it must be addressed by the Board before a finding of willful misconduct can be made. Hubbard v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 285, 289, 456 A.2d 1122, 1124 (1983). Where a separate finding on good cause is not made, this Court will remand for further proceedings. Id.

Order

The order of the Unemployment Compensation Board of Review, Decision No. B-200912, dated November 4, 1981, is hereby vacated and the matter is remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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