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NANCY S. PRYOR v. COMMONWEALTH PENNSYLVANIA (05/24/84)

decided: May 24, 1984.

NANCY S. PRYOR, 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 Nancy S. Pryor, No. B-204183.

COUNSEL

Charles S. Morrow, Behrend, Aronson & Morrow, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Craig and Colins, sitting as a panel of three. Opinion by Judge Williams, Jr. Dissenting Opinion by Judge Colins.

Author: Williams

[ 82 Pa. Commw. Page 525]

Nancy Pryor (claimant) petitions for review of a decision of the Unemployment Compensation Board of Review (Board) denying benefits under Section 402(e)*fn1 of the Unemployment Compensation Law (Act) (discharge for willful misconduct in connection with work).

The claimant was last employed as a senior operator by the Bell Telephone Company of Pennsylvania (employer). Beginning in May, 1980, she began a series of extended absences from work due to anxiety. During these absences, she received benefits under the employer's disability plan. Her last period of work was from June 12, 1981 to June 18, 1981; thereafter, she was again absent. On August 7, 1981, the claimant's treating psychiatrist certified to the employer that she was unable to work and did not indicate a probable date of return. The employer's disability plan provides for fifty-two weeks of coverage and on August 13, 1981, the employer notified the claimant that her benefits would be exhausted as of August 31, 1981. On August 20, 1981, the claimant's psychiatrist certified that she was able to return to work as of August 21, 1981. When advised of the change in her condition, the employer informed her that before she would be permitted to return she would have to be examined and approved by a psychiatrist appointed by the employer.

On September 1, 1981, the claimant reported to the employer appointed psychiatrist, Dr. Twerski, as scheduled; however, when he advised her that he would provide to the employer all of the information which the claimant revealed to him, she refused to participate in the examination. Due to her refusal, Dr.

[ 82 Pa. Commw. Page 526]

Twerski was unable to evaluate her condition and form a meaningful opinion as to her ability to return to work. When he informed the employer of these events, she was removed from the employment rolls, effective August 31, 1981, because of the expiration of her disability benefits and her refusal to meet the employer's condition on her return to work.

The claimant's refusal to participate in the examination by Dr. Twerski was due to her fear that the revelation of such information to the employer might be detrimental to litigation which she was then pursuing against the employer.

On appeal, the claimant presents several questions for our review. These issues can be summarized as whether the Board has the power to reverse findings of fact made by the referee and whether the Board committed legal error in concluding that the claimant's refusal to participate in the examination by Dr. Twerski constitutes willful misconduct.

In regard to the Board's power to reverse findings made by a referee, prior decisions have made it clear that in unemployment compensation cases, the Board is the ultimate factfinder.*fn2 Bermudez v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 602, 457 A.2d 190 (1983); Unemployment Compensation Board of Review v. Wright, 21 Pa. Commonwealth Ct. 637, 347 A.2d ...


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