Krentsel v. Commonwealth

Opinion by Judge MacPhail, Efim Krentsel (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which found him ineligible for unemployment compensation benefits due to willful miscon [308] duct. See Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Se<ss., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Claimant was employed by the Southeastern Pennsylvania Transportation Authority (SEPTA) as a disabled cashier when, on July 27, 1981, he was discharged for his failure to report to SEPTA’s Medical Director for a physicial examination. As reflected by the referee’s fact findings, the relevant history of this case dates back to November 22, 1980 when Claimant was assaulted and severely beaten by several youths while working for SEPTA as a trolley car operator. As a result of the attack, Claimant was absent from work until January, 1981 when he was assigned by SEPTA to lighter duties ¡while continuing to receive workmen’s compensation benefits for partial disability. On June 22,1981, following approval by SEPTA’s medical department, Claimant was returned to full-time duty as a disabled cashier working night shift. On or about July 21, 1981, Claimant contacted SEPTA’s medical department and other SEPTA representatives requesting that ho be assigned to a day-time shift. Claimant’s request was prompted by the fact that he suffers from diabetes and high blood pressure and alleged that he was having difficulty working night hours due to his illness. The medical department interviewed Claimant and concluded, in a report dated July 24, 1981, that there were m> medical grounds for altering Claimant’s work schedule. Claimant also attended a meeting with his district superintendent on July 24 and again requested reassignment to day-time hours. The superintendent informed Claimant that he could not reschedule his hours and that since Claimant refused to work at night he must return to the medical department for further evalúa [309] tion on July 27, 1981 or be discharged. Claimant became verbally abusive at the' meeting and indicated that he would not comply with the superintendent’s order. The referee found, based on substantial record-evidence, that Claimant failed to report to the medical department on July 27 and that his subsequent discharge was due to willful misconduct. The Board affirmed based on the referee’s findings and the instant appeal f ollowed. The referee’s findings, as summarized above, would appear to support the legal conclusion that Claimant’s conduct 'Constituted willful misconduct. An employee’s refusal to comply with a reasonable order of his employer can constitute willful misconduct. Kresge v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 78, 405 A.2d 1123 (1979). In order to avoid such a finding, Claimant must establish good cause for his actions. Id. When the actions of an employee are justifiable or reasonable under the circumstances, a finding of willful misconduct cannot stand. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). In the instant case, Claimant contends that although he did not report directly to SEPTA’s medical department on July 27, he was examined by am other doctor on that day. Our review of the hearing transcript in this case has been hindered by the appearance of numerous “inaudibles” in the transcript and by the fact that Claimant, a recent Russian immigrant, was not represented by counsel at the referee’s hearing and does not yet possess full command of the English language. We are able to glean from Claimant’s testimony, however, that he was examined on July 27 by a Dr. Kodroff, who apparently was the [310] physician chosen by SEPTA to treat Claimant following his assault in November, 1980.1 Claimant testified that following the district superintendent’s order to be examined on July 27, Claimant went to Dr. Kodroff, rather than his family doctor, for an examination. In fact, the record does contain a note signed by Dr. Kodroff and dated July 27, 1981.2 The note states as follows: “Patient under our care for Diabetes Mellitus. (Glucose today 400) For proper management patient may not work at night.” (Emphasis in original.) Neither the referee nor the Board made any findings regarding Dr. Kodroff’s note or Claimant’s testimony concerning his medical examination on July 27. Since this evidence raises the issue of good cause for Claimant’s failure to report directly to SEPTA’s medical department, we conclude that a remand is in order for further findings. When the issue of good cause is raised, it must be addressed by the Board before a finding of willful misconduct can be made. Hubbard v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 285, 289, 456 A.2d 1122, 1124 (1983). Where a separate finding on good cause is not made, this Court will remand for further proceedings. Id. Order The order of the Unemployment Compensation Board of Review, Decision No. B-200912, dated November 4, 1981, is hereby vacated and the matter is remanded for further proceedings consistent with the foregoing opinion. Jurisdiction relinquished. Footnotes [1] See N.T. at 9-11. [2] The physician’s note, marked as Exhibit 8, was admitted into the record without objection by SEPTA.