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BROWNING-FERRIS INDUSTRIES PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (11/04/87)

decided: November 4, 1987.

BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., 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 Thomas D. Cook, Jr., No. B-253087.

COUNSEL

P. Christian Hague, Meyer, Unkovic & Scott, for petitioner.

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

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

Author: Narick

[ 111 Pa. Commw. Page 2]

This is an appeal by Browning-Ferris Industries of Pennsylvania, Inc. (Employer) from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's award of benefits to Thomas D. Cook (Claimant) pursuant to Sections 401(d)(1) and 402(e) of the Unemployment Compensation Law (Act)

[ 111 Pa. Commw. Page 3]

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1)*fn1 and § 802(e).*fn2 We affirm.

Claimant was first employed as an electrician and compactor operator for Employer on April 18, 1983. However, on Claimant's first day of work he suffered a work-related accident which required the amputation of his four left toes. In September, 1984, Claimant returned to work for Allison Welding and Salvage. Claimant testified that he only worked a short period for Allison Welding and Salvage because he was unable to perform his job responsibilities which involved heavy lifting. On or about November 28, 1984, the District Safety Manager for Employer, Beth A. Eckert, forwarded to Claimant's plastic surgeon, E. Douglas Newton, a job analysis describing employment available to Claimant. The job analysis indicated that a position of forklift operator and painter was available to Claimant. The job was described as involving the operation of a forklift and some light painting of small areas. The physical demands of the job would entail standing, walking, sitting and driving of a forklift. In addition, some stooping, kneeling, crouching and reaching would be required when painting. However, Claimant would not be required to do any climbing, balancing, pushing, pulling, or lifting in excess of twenty pounds. Dr. Newton approved the job analysis description on December 5, 1985, and Claimant returned to work shortly thereafter.

[ 111 Pa. Commw. Page 4]

The record reveals that after Claimant returned to work, he operated a forklift on only one or two occasions. Rather, most of his time was spent painting, sweeping floors, cleaning gas pumps, and cutting weeds with a weed hacker. On October 9, 1985, Claimant was suspended for refusing to perform his work assignments and for failure to furnish a doctor's report explaining his absence from work on September 12 through 16, 1985.

The referee awarded benefits to Claimant and Employer appealed. The Board affirmed the referee's decision. On appeal to this Court, Employer presents three issues for our review: (1) whether the Board erred in concluding that Claimant's actions did not constitute willful misconduct; (2) whether the Board erred in concluding that Claimant did provide a doctor's report as required by Employer's policy; and (3) whether the Board erred when it failed to consider evidence submitted by Employer that Claimant had filed an application for worker's compensation benefits whereby he alleged that he was totally disabled as a result of a work-related injury.

Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704 limits our scope of review to determining whether there has been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). The burden of proving that an employee is guilty of willful misconduct is on the employer. American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 272, 412 A.2d 1123 (1980). Whether the Board's findings support a conclusion that a claimant's conduct amounts to ...


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