Lopez v. Commonwealth, Unemployment Compensation Board of Review , 69 Pa. Commw. 566 ( 1982 )

OpiNioN by

Pbesident Judge Crumlish, Jr.,

The Unemployment Compensation Board of Review by order affirmed the referee’s denial of benefits to Julian Lopez. We affirm.

Lopez returned to employment after a seven-week medical leave of absence and was. assigned to a different job because his usual position had been phased out. After one half-hour, Lopez claimed that he could not do the job, due to physical problems, and requested lighter work. Following a work ultimatum, he failed •to return to his work station and was. fired.

The referee concluded that Lopez’s failure to return was a voluntary quit under Section 402(b) (1) of the Unemployment Compensation Law (Law).¹ The Board affirmed the denial, but concluded that Lopez’s failure to return to his station amounted to willful misconduct under Section 402(e) of the Law.²

An employee’s “[r]efusal of an employer’s reasonable work assignment constitutes willful misconduct absent proof by the employee that the refusal was for good cause.” Laws v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 424, 430, 412 A.2d 1381, 1384 (1980). Lopez contends on appeal that his alleged physical difficulties constituted good cause for his refusal to accept the new assignment.

Where, as here, the party with the burden of proof³ did not prevail below, our scope of review is limited to determining whether the Board’s findings of fact are consistent with one another and with the conclusions of law and whether they can be sustained without capricious disregard of competent evidence. Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 426 A.2d 719 (1981).

The only evidence presented to substantiate Lopez’s claim of good cause was his own testimony regarding the physical problems he experienced in executing the assigned task. The Board is the final arbiter of credibility and may even reject uncon-tradicted testimony, Eduardo v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 424, 434 A.2d 215 (1981). The Board noted here his testimony, hence it cannot be said that its rejection was capricious.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-193195 dated March 12, 1981, is affirmed.

AMENDING Order

Now, November 22, 1982, tbe Order of tbis Court dated November 5, 1982, is hereby amended to read as follows:

Tbe order of tbe Unemployment Compensation Board of Review, No. B-193195-B dated July 30, 1981, is affirmed.

1 Section 402(b) (1) of tbe Law states that a claimant will be ineligible-for benefits for any week “[i]n which his unemployment •is due to voluntarily leaving work without cause of necessitous and •compelling nature . . . .” Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802(b) (1).

2 Section 402(e) provides in pertinent part that a claimant will be ineligible for benefits any week “[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with-his work . . 43 P.S. §802 (e).

3 The burden of proving willful misconduct is upon the employer. Devine v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 318, 429 A.2d 1243 (1981). However, where the employer has discharged its burden, as in the present ease, and the claimant attempts to justify the alleged misconduct by a showing of good cause, the claimant must bear the burden of proving good cause. Darby Township v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 284, 429 A.2d 1223 (1981).