RAMSEY v. UN. COMP. BD. of REV., 58 Pa. Commw. 288 (1981)

427 A.2d 1249

Cheryl A. Ramsey, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.Argued February 5, 1981
April 6, 1981.

Unemployment compensation — Absence — Illness — Burden of proof — Good cause.

1. In an unemployment compensation case, an absence from work due to an illness that is reported to the employer in the correct manner does not constitute willful misconduct, and an employee who is ill may justifiably refuse an employer’s demand to report to work despite his or her condition. [290]

2. In an unemployment compensation case, it is the employee’s burden to prove that good cause existed for her absence and her refusal to accede to her employer’s demand that she report to work. [290]

Argued February 5, 1981, before Judges BLATT, MacPHAIL and WILLIAMS, JR., sitting as a panel of three.

Appeal, No. 1941 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Cheryl A. Ramsey, No. B-174976.

Page 289

Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Mark P. Cancilla, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Elsa D. Newman-Silverstine, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

OPINION BY JUDGE BLATT, April 6, 1981:

The petitioner[1] challenges a decision by the Board[2] that she was discharged for willful misconduct and that Section 402(e) of the Unemployment Compensation Law,[3] therefore, makes her ineligible for benefits.

The petitioner, who worked at the service desk and operated a cash register for her employer,[4] was absent from work for 13 days and was tardy on 14 occasions between January and April of 1979. Her supervisor warned her about her absenteeism, but on Saturday, May 12, 1979, she again reported off as absent, claiming that she had a severe toothache. Because that day was part of a week which the employer considered to be the third-busiest week of the year, the petitioner’s supervisor called her back to tell her either to report for work or to consider her services terminated. She did not report and was then discharged.

Page 290

Unemployment compensation benefits were denied by the Bureau (now Office) of Employment Security and, after a hearing and the taking of evidence, a referee affirmed that determination. Upon appeal, the Board upheld the referee’s denial of benefits on the ground that the petitioner’s absence on a busy day without good cause and after warnings regarding her past absenteeism amounted to willful misconduct.

We recognize, of course, that an absence from work due to an illness that is reported to an employer in the correct manner does not constitute willful misconduct, Unemployment Compensation Board of Review v. Kells, 22 Pa. Commw. 479, 349 A.2d 511 (1975), and also that an employee who is ill may justifiably refuse an employer’s demand to report to work despite his or her condition. Kindrew v. Unemployment Compensation Board of Review, 37 Pa. Commw. 9, 388 A.2d 801 (1978). It was the petitioner’s burden, however, to prove that good cause existed for her absence and/or for her refusal to accede to her employer’s demand. Morysville v. Unemployment Compensation Board of Review, 54 Pa. Commw. 6, 419 A.2d 238 (1980). Our examination of the record reveals no capricious disregard of competent evidence[5] on the part of the Board and no substantiation of the existence of the petitioner’s alleged toothache.[6] She had a history of absenteeism

Page 291

about which she had been warned. Nevertheless, on the day in question, when her employer was particularly busy, she refused her employer’s demand to come to work and yet she has not proved that she had good cause for that refusal. We must agree with the Board that such behavior constitutes willful misconduct. See Kindrew v. Unemployment Compensation Board of Review, supra.

ORDER
AND, NOW, this 6th day of April, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

This decision was reached prior to the expiration of the term of office of Judge WILKINSON, JR.

[1] Cheryl A. Ramsey.

[2] Unemployment Compensation Board of Review.

[3] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897 as amended, 43 P. S. § 802(e).

[4] Hills Department Store.

[5] When the party with the burden of proof has not prevailed below, our scope of review is limited to determining whether or not the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commw. 138, 409 A.2d 126 (1979).

[6] The Board’s function as the ultimate factfinder gave it sole discretion in determining that the petitioner’s testimony as to her toothache was incredible, Kresge v. Unemployment Compensation Board of Review, 46 Pa. Commw. 78, 405 A.2d 1123 (1979), especially in light of her admission that on a prior occasion she had reported off due to a toothache and later admitted that she actually had attended a party.