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CUMBERLAND COUNTY NURSING HOME v. COMMONWEALTH PENNSYLVANIA (05/15/84)

decided: May 15, 1984.

CUMBERLAND COUNTY NURSING HOME, 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 Shirley Hockley, No. B-212558-B.

COUNSEL

Douglas B. Marcello, Mancke, Lightman & Wagner, for petitioner.

James R. Humer, for intervenor, Shirley Hockley.

Judges MacPhail, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 82 Pa. Commw. Page 429]

Petitioner, Cumberland County Nursing Home (Employer), appeals from a decision of the Unemployment Compensation Board of Review (Board) which granted compensation to Shirley Hockley, finding no ineligibility under Section 402(e) of the Pennsylvania Unemployment Compensation Law.*fn1

Shirley Hockley (Claimant) was employed by the Nursing Home as a practical nurse, when, on February 2, 1982, she injured her ankle and was granted a six-month leave of absence. During the absence, Claimant remained in communication with her employer, and indicated that her physician had not given her a date on which she would be able to return to work. On July 26, 1982, the employer informed Claimant by letter that because she would not be able to return to work by the end of her leave of absence, her position would be terminated on that date.

Claimant was terminated at the end of her leave, and was later granted unemployment benefits by the Office of Employment Security. This award of benefits was reversed by the referee, whose decision was subsequently affirmed by the Board. On appeal to this Court, the matter was remanded upon stipulation

[ 82 Pa. Commw. Page 430]

    of the parties for the taking of additional evidence. The Board directed that a new hearing be held, and, upon a review of the entire transcript, issued its present decision allowing benefits.

In its present appeal, the employer argues that the Board erred in failing to find Claimant guilty of willful misconduct. Initially, we note that our scope of review in cases where the party with the burden of proof has not prevailed before the Board*fn2 is limited to a determination of whether the findings of fact can be sustained without capricious disregard of competent evidence and are consistent with each other and with the conclusions of law. Bono v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 31, 464 A.2d 710 (1983). Although employer has erroneously addressed its argument to whether there exists substantial evidence to support the findings of fact, we shall review the claim in light of the appropriate standard.

The employer argues that there is no evidence to support the Board's finding that the Claimant indicated her readiness to work prior to her termination on August 2. The employer argues that the Board disregarded evidence which established not only that Claimant consistently indicated her inability to work, but further that she failed to notify her employer upon learning from her physician of a date on which she could return to work.

A review of the record reveals some merit to the claim that the Board capriciously disregarded the evidence on this issue. We cannot agree, however, that such a conclusion would require a reversal or remand ...


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