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BRUCE H. WAGNER v. COMMONWEALTH PENNSYLVANIA (09/03/87)

decided: September 3, 1987.

BRUCE H. WAGNER, 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 Bruce H. Wagner, No. B-244805.

COUNSEL

Allen J. Koslovsky, Southwestern Pennsylvania Legal Aid Society, Inc., for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Barry

[ 109 Pa. Commw. Page 153]

Bruce Wagner, the claimant, appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of a referee denying benefits pursuant to Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b) (Supp. 1987) (voluntarily terminating employment without cause of a necessitous and compelling nature).

The claimant was employed as a truck driver by Gale Trucking after December 15, 1984. Prior to that time, he had been an employee of Great American Lines driving Gale Trucking's equipment. In January of 1985, the claimant notified the employer that he could not work until he obtained medical treatment for a neck problem. Because the claimant failed to appear at a magistrate's hearing regarding a violation concerning one of the employer's trucks in February of 1985, the employer considered claimant to have abandoned his

[ 109 Pa. Commw. Page 154]

    employment. Claimant had an operation to correct the neck problem on May 16, 1985. His doctor released him to work on June 23, 1985; claimant was, however, restricted from driving a truck.

The claimant filed an application for benefits on June 23, 1985. Following a hearing, the referee denied benefits. The Board, despite making factual findings somewhat different from those of the referee, affirmed. This appeal followed.

Both the referee and the Board based the denials of benefits on the fact that the claimant had never notified the employer of his health problems at the time he terminated his employment and never requested a transfer to another position. In Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 130-31, 451 A.2d 1353, 1356 (1982), the Court stated:

Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with his medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more. The availability of an employment position, the duties expected to be performed by one serving in that capacity, and the desirability of that individual for service in that capacity are managerial judgments over which the employee has no control. As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimicable to ...


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