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COOPER INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (03/16/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 16, 1989.

COOPER INDUSTRIES, INC., MCGRAW EDISON POWER SYSTEMS DIVISION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeals from the orders of the Unemployment Compensation Board of Review in the cases of In Re: Claims of John Gostic, No. B-266787; Frank Pratten, No. B-266900; and Ralph Marino, No. B-266930.

COUNSEL

Mark R. Hornak, with him, Donald G. Lucidi, Buchanan Ingersoll P.C., for petitioner.

No appearance for respondent.

Lawrence R. Chaban, Yablonski, Costello, Leckie & Chaban, for intervenors, Ralph Marino and Frank Pratten.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 124 Pa. Commw. Page 242]

Consolidated for our review are appeals by Cooper Industries, Inc., McGraw Edison Power Systems Division (Employer) from decisions of the Unemployment Compensation Board of Review (Board) awarding benefits to Ralph Marino, Frank Pratten and John Gostic (hereinafter collectively referred to as Claimants).*fn1 We affirm.

Claimants had received work-related injuries which rendered them eligible for workers' compensation benefits. Employer had a light duty program designed to assist disabled employees' return to work and Claimants participated in this program. In November 1986, Employer decided to abolish the light duty program. As a result, Claimants' workers' compensation benefits were reinstated. Additionally, they applied for unemployment compensation benefits. The referee disqualified Claimants from receiving benefits pursuant to Section 401(d) of the Unemployment Compensation Law (Act).*fn2 On appeal, the Board remanded to the referee directing two

[ 124 Pa. Commw. Page 243]

    questions be asked of Claimants: (1) whether they would limit their availability to work for McGraw Edison if they were able to work; (2) whether they would work for any other employer in the labor market if they were able to work. The Board subsequently reversed the referee and granted benefits.*fn3 The appeals have been consolidated for our review.

Employer argues on appeal that (1) the Board abused its discretion by remanding the matter to the referee for the purpose of taking additional testimony, (2) the Board's findings that Claimants were able and available for suitable work in the labor market were not supported by substantial evidence and (3) the Board's findings that Claimants were able and available for suitable employment constitutes an erroneous conclusion of law.*fn4

[ 124 Pa. Commw. Page 244]

Intervenors initially rebut Employer's contention that the Board's remand order was improper by arguing that Employer's objections to the remand orders are untimely. We disagree. It is well settled that an appeal from a Board remand order is interlocutory and unappealable as of right. Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981); Abington School District v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 457, 456 A.2d 1152 (1983). The reasoning behind this rule is to prevent piecemeal review by appellate courts. See Page 244} Abington School District. Thus, Employer's argument has been properly raised.

As to the argument that the Board abused its discretion in ordering a remand, we decline to agree. It is clear that the Board has discretionary power to decide when a remand is necessary and what issues may be addressed at the remand hearing. Section 504 of the Act, 43 P.S. § 804, 34 Pa. Code §§ 101.104, 101.108; Harrison v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 129, 457 A.2d 238 (1983); Hussar v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 28, 432 A.2d 643 (1981). Indeed, if the Board deems the record before it to be inadequate for proper resolution of the issues presented, it has the power to remand a case to the referee for the purpose of receiving additional evidence. Hussar. Accordingly, the Board did not abuse its discretion by granting a remand for the purpose of receiving additional evidence.

Employer, in support of its position that the Board's decisions were not supported by substantial evidence, contends that the testimonies of Claimants at the remand hearings contradicts their testimony at their original hearings.*fn5 Questions of credibility, evidentiary weight and inferences to be drawn from the evidence are for the Board to determine. Browning-Ferris Industries v. Unemployment Compensation Board of Review, 111 Pa. Commonwealth Ct. 1, 532 A.2d 1266 (1987), appeal denied 518 Pa. 628, 541 A.2d 1139 (1988). The Board is the final arbiter of credibility and its decision will not be disturbed if supported by substantial evidence. Id. The Board's remand orders required two questions be addressed

[ 124 Pa. Commw. Page 245]

    to Claimants: (1) whether they would limit their availability to work for Employer if they were able to work and (2) whether they would work for any other employer in the labor market if they were able to work. Each Claimant responded in the affirmative to both questions. Thus, the Board's decisions are supported by substantial evidence.

Lastly, in support of its position that the Board's decisions constitute errors of law, Employer argues that Claimants made no effort to inquire into the availability of other suitable work or to discover what their bumping rights under the collective bargaining agreement were. Available for suitable work under the Act requires one to be ready, willing and able to accept temporary or permanent suitable employment which may or may not be with one's former employer. See Craig v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 305, 442 A.2d 400 (1982).*fn6 An unemployment compensation claimant who attaches conditions and limitations to his employment may render himself unavailable for work. Id. Therefore, the law requires an employee, unable to perform his regular duties due to a physical condition, to be available for suitable work consistent with his medical condition if he wishes to remain eligible for unemployment compensation. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Once he has communicated his medical problem to his employer, the burden shifts to the employer to offer reasonable accommodations. Genetin; Reyes v. Unemployment Compensation Board of Review, 103 Pa. Commonwealth Ct. 167, 520 A.2d 85 (1987). An

[ 124 Pa. Commw. Page 246]

    employee is not required to initiate requests for alternative employment. Genetin. The testimony established that Employer was aware of the Claimants' limitations, Claimants were willing to accept alternative employment and they would accept employment with another employer. Accordingly, the Board's decisions were in accordance with the law.

We will, therefore, affirm.

Order

And Now, this 16th day of March, 1989, the orders of the Unemployment Compensation Board of Review in the above-captioned matters are hereby affirmed.

Disposition

Affirmed.


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