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SUSAN THOMAS v. COMMONWEALTH PENNSYLVANIA (03/05/87)

decided: March 5, 1987.

SUSAN THOMAS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Susan Thomas, No. B-237632.

COUNSEL

Richard E. Thrasher, for petitioner.

James K. Bradley, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Senior Judge Kalish.

Author: Craig

[ 104 Pa. Commw. Page 349]

Claimant Susan Thomas petitions for review of an order of the Unemployment Compensation Board of Review affirming a referee's decision which had denied benefits. We reverse.

The claimant had worked as a presser at MID Sportswear until January 23, 1984, when she relinquished that job because of a sore arm. The Office of

[ 104 Pa. Commw. Page 350]

Employment Security awarded unemployment compensation benefits because the employer did not have available work which did not aggravate the claimant's physical condition.

Although the claimant's job coding was as a janitor and maintenance repair worker, the Office of Employment Security referred her to Mountain Orchards Co-Op for prospective employment as a laborer on October 19, 1984.*fn1 After Mountain Orchards had interviewed the claimant and declined to offer her the laborer job, the referee denied benefits on the basis that the claimant had failed to apply properly for suitable work, citing section 402(a) of the Unemployment Compensation Law.*fn2

The referee stated in the discussion section of her opinion that, "the claimant, in fact, discouraged her employment by vacillating such response to the prospective employer's question [whether the dampness at the employer's facility would bother her]," and made the following formal findings of fact:

5. The claimant's physician has advised the claimant that in spite of the fact that she has bursitis, she has no physical restrictions in reference to any type of employment.

[ 104 Pa. Commw. Page 3516]

. The claimant reported to Mountain Orchards Co-Op after having been referred there by the Office of Employment Security on October 19, 1984, at which time she indicated on her application for employment that she suffered from bursitis.

7. In spite of the fact that the claimant's physician advised her that her bursitis presented no work restrictions, she informed her prospective employer that she did not know whether or not the dampness which might be ...


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