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HOWER AND SON v. COMMONWEALTH PENNSYLVANIA (05/29/86)

decided: May 29, 1986.

HOWER AND SON, 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 Terry L. Fritz, No. B-226958.

COUNSEL

Michael A. Filingo, Zito, Martino and Karasek, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

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

Author: Barry

[ 97 Pa. Commw. Page 502]

This is an appeal by Hower and Son (employer) of an order of the Unemployment Compensation Board of Review (Board) granting benefits to employer's former truck driver, Terry Fritz (claimant), under Section 401(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d).

The claimant suffered a seizure at work on September 10, 1983, and another the same day, shortly thereafter, at Easton Hospital. He was subsequently advised by his doctor to leave his place of employment and refrain from engaging in similar employment activity for at least one year. He did return to work for two weeks at the employer's request to assist in training his replacement. The exact reason for his departure from the employer is in dispute. The Board found that the claimant informed the employer of his restriction but the employer had no work available to the claimant and that the claimant was then discharged. The Board also found

[ 97 Pa. Commw. Page 503]

    that the claimant was able and available for work under Section 401(d)(1).*fn1

Since the claimant asserts that he did not leave employment voluntarily, the burden of establishing this issue lies with him. Helsel v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 421 A.2d 496 (1980).

Our scope of review, when the party with the burden of proof prevails before the Board, is limited to whether an error of law was committed or whether necessary findings of fact are unsupported by substantial evidence. Harris v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 260, 473 A.2d 251 (1984). The questions with which we are presented are: (1) Whether the Board's findings that the employer had no work available to the claimant within his physical limitations, that he was discharged and that he was able and available for suitable work are unsupported in the record; (2) whether the claimant is ineligible for benefits because he failed to affirmatively negotiate for an available and suitable position with the employer; (3) whether the doctor's certification was improperly admitted into evidence by the Board; and (4) whether the employer's due process right to confront the claimant was violated when the claimant failed to appear for the hearing before the referee.

We find that the disputed findings made by the Board are supported in the record by substantial evidence. In fact, the evidence presented by the employer is sufficient, standing alone, to support the Board's findings. That the employer had no work ...


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