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DEONNE R. NEW v. COMMONWEALTH PENNSYLVANIA (05/16/89)

decided: May 16, 1989.

DEONNE R. NEW, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION)

COUNSEL

Deonne R. New, Philadelphia, pro se.

Clifford F. Blaze, Deputy Chief Counsel, Maribeth Wilt-Seibert, Asst. Counsel, Harrisburg, for respondent.

Palladino and Smith, JJ., and Kalish, Senior Judge.

Author: Palladino

[ 126 Pa. Commw. Page 54]

Deonne R. New (Petitioner) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying benefits to Petitioner under 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. ยง 802(e), based on a finding that the Petitioner had engaged in willful misconduct. We affirm.

Petitioner was employed as a secretary/typing trainee by the Veterans Administration Data Processing Center in Philadelphia, Pennsylvania (employer). On May 29, 1984, Petitioner injured herself on the job while trying to prevent a stack of files from falling. The injury was diagnosed as acute sciatica. After a period of medical leave, Petitioner returned to light duty work, part time, four hours per day, and eventually returned to full time work. In September, 1986, Petitioner reinjured herself and after a period of medical leave, returned part-time to light duty work. Petitioner resumed full time work in February, 1987.

[ 126 Pa. Commw. Page 55]

In July 1987, Petitioner suffered a second recurrence of her condition, and was granted medical leave beginning on July 25, 1987. On August 31, 1987, Petitioner's physician sent a note to the employer which stated that Petitioner could return to work four hours per day as soon as "she is given a parking space in Gate # 3" and "her working area [is] redesigned." Record Item 4, Exhibit 7.

In a letter dated September 30, 1987, Record Item 4, Exhibit 9, the employer authorized four hours of leave without pay (LWOP) per day for Petitioner. This LWOP status was for a period of six weeks from August 31, 1987, to October 11, 1987, and was granted as a result of the August 31, 1987 note from Petitioner's physician. The employer also agreed to redesign Petitioner's work area. The employer, however, did not agree to give Petitioner a parking space at Gate 3. Instead, the employer assigned Petitioner a space in the handicapped parking area at Gate 7. This was the lot designated by the employer for all handicapped employees.

In a follow up letter dated October 14, 1987, Record Item 4, Exhibit 10, in response to a query why Petitioner had been assigned the parking spot at Gate 7 rather than at Gate 3, the employer stated that it was because "[t]hat parking area involves no stairs to climb and has the mildest grade into the office." Petitioner was ordered back to work immediately, since reasonable accommodation had been made. The letter also contained the following warning:

We feel that our offer was reasonable from October 7 onwards. Therefore, by not reporting you risk being charged absent without leave from October 7, 1987. In addition, disciplinary/adverse action may result from your failure to report.

Finally, a second letter from Petitioner's physician, dated October 14, 1987, stated that Petitioner could return to work for four hours per day. This letter did not request any further accommodation. Record ...


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