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FRANK D. ATTISANO v. COMMONWEALTH PENNSYLVANIA (09/14/87)

decided: September 14, 1987.

FRANK D. ATTISANO, 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 Frank D. Attisano, No. B-243474.

COUNSEL

William G. Cohen, for petitioner.

Richard F. Faux, 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 319]

This is an appeal by Frank Attisano, claimant, from an order of the Unemployment Compensation Board of Review affirming the referee's denial of benefits after claimant was discharged for allegedly falsifying employment and medical records. The referee and Board based their decision on Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(e).

Claimant, who worked for employer, Universal Refractories, as a mixer helper and oven man, suffered a work related back injury on November 14, 1984. He was released to return to work by his physician on February 19, 1985. However, before returning to the job claimant was suspended and subsequently discharged for falsification of company and medical records. The company record referred to is the employment application completed at the time of hiring on which claimant answered "no" to the question of whether he had any physical conditions which would limit his ability to perform his job. The medical record was completed two months after claimant was hired and lists forty-eight different conditions upon which claimant checked "no" to the conditions entitled "backache" and "back injury". The referee found that claimant did not deliberately falsify his employment application but did purposely fail to disclose on his physical examination record the existence of a back condition and backache. He denied claimant benefits and the Board affirmed. On appeal, claimant argues that his failure to disclose was unintentional and not material to his employment. He argues further that the employer exhibited an intent to discriminate against him in violation of the Section 5 of the

[ 109 Pa. Commw. Page 320]

Pennsylvania Human Relations Act,*fn1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955. In addition, claimant contests the order of this Court denying his Motion for Remand for Consideration of After Discovered Evidence.

[ 109 Pa. Commw. Page 321]

The burden of proving willful misconduct is on the employer. Cundiff v. Unemployment Compensation Board of Review, 88 Pa. Commonwealth Ct. 272, 489 A.2d 948 (1985). Our scope of review is limited to determining whether necessary findings are supported by substantial evidence, an error of law committed or whether any of the claimant's constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. We affirm.

[ 109 Pa. Commw. Page 322]

With respect to claimant's first argument that his failure to disclose was neither material to his employment nor intentional, we turn to the first part of the referee's finding of fact No. 7 which reads: "because of the heavy manual labor required by certain employees, the employer required the information relative to any prior work-related injuries. . . ." This is undisputed and supported by the testimony of employer's witness. Certainly, the reporting of a back injury or back condition on a physical examination report in light of this supported finding must be considered material to claimant's employment. Claimant correctly contends that the latter portion of finding of fact No. 7 which reads: "such that claimant's employment would not have been continued, without further testing, had the claimant truthfully completed the physical examination report" may be unsupported by substantial evidence in the record, however, the introductory portion of that finding adequately supports a conclusion of materiality. "'[T]he information invited by the application and falsely provided should concern matters material to the employment sought for the errant answer to be disqualifying for ...


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