
    Bernard J. Kunz, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.
    
      Argued April 7, 1980,
    before Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three.
    
      John D. Maida, for appellant.
    
      Stephen Lipson, with him James Bradley, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
    May 12, 1980:
   Opinion by

Judge Rogers,

Bernard J. Kunz has appealed from a decision of the Unemployment Compensation Board of Review, affirming a referee’s decision disqualifying him from benefits for a penalty period of nine weeks pursuant to Section 801(b) of the Unemployment Compensation Law (the Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §871 (b), which provides in relevant part:

(b) Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each snch week of improper payment____

Kunz was employed by James J. Skelly, Inc. as an oiler from April 1978 until August 1978. In June of that year, Kunz injured his back on the job and missed five days of work. When he returned to work he was instructed, apparently by Skelly’s workmen’s compensation representative, to have his back examined by a medical doctor and an appointment was made for August 10, 1978. Kunz also began receiving treatments from a chiropractor and he continued to work until August 2,1978, when he was laid off because of a lack of work. He applied for unemployment compensation benefits, which were granted beginning the week ending August 12,1978. He did not report his back injury or his chiropractic treatments to the unemployment compensation authorities.

On August 10, 1978, Kunz visited the medical doctor, as instructed, and began receiving treatment from him while continuing his chiropractic treatment. On September 26, 1978, he told a claims examiner at the local employment security office that the physician had found him unable to work. The Bureau (now Office) of Employment Security thereafter determined that Kunz had not been able or available for work as required by Section 401(d) of the Law, 43 P.S. §801 (d) and declared a fault overpayment in the amount of $917.00 for the weeks ending August 12, 1978 through September 23, 1978 pursuant to Section 804 (a) of the Law, 43 P.S. §874(a). Kunz repaid the $917.00 without appealing either decision.

On October 31,1978, the Bureau issued another determination penalizing Kunz with an additional nine weeks of ineligibility under Section 801(b) of tbe Law. Kunz appealed the determination to a referee who conducted a bearing at wbicb Kunz appeared as tbe sole witness. Tbe referee affirmed the Bureau on the basis of tbe following finding of fact:

5. When filing for unemployment compen-sation benefits the claimant withheld information from tbe Bureau that be was under the care of a physician and unable to work.

Kunz appealed tbe referee’s decision to tbe Board of Review wbicb appointed a bearing examiner to take additional evidence. After tbe second bearing, at wbicb Kunz and representatives of tbe Bureau testified, tbe Board affirmed tbe referee’s decision. This appeal followed. We reverse.

Neither tbe finding of the referee nor tbe record supports the legal conclusion that Kunz “knowingly fail[ed] to disclose a material fact to obtain or increase any compensation.” Tbe referee found only that Kunz withheld information. There was no finding concerning bis state of mind or bis purpose in withholding tbe information. Kunz underwent chiropractic treatment for bis back injury for nearly two months while be continued to work for Skelly. He explained bis failure to report bis treatments as follows:

Q. [Referee] Why didn’t you tell tbe local office that you were still being treated by a chiropractor when you came in and filed* back in August?
A. I never gave it a thought.
A. I didn’t really give it a thought. I just figured I’d get tbe doctor’s treatments and maybe I could still continue to go to work. That’s tbe reason I done it really.

This evidence does not support tbe conclusion that Kunz’s withholding of information was knowing or was done for the purpose of obtaining compensation. Moreover, the fact that Kunz worked for nearly two months while receiving treatments is strong evidence that he considered himself available for work. When he was laid off for reasons unrelated to his health, he had no reason to suspect that his back condition would prevent him from accepting other employment.

The case of Morocco v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 285, 392 A.2d 913 (1978), on which the Board relies, is distinguishable. There, the claimant not only withheld information because he feared disqualification from benefits but he also falsely stated to the Bureau that he was not employed during the weeks for which he received benefits.

Order reversed.

Obdeb

And Now, this 12th day of May, 1980, the decision of the Unemployment Compensation Board of Review, penalizing Bernard J. Kunz nine weeks of benefits to which he would be otherwise entitled during the two year period following October 31,1978, is reversed. 
      
       Kunz subsequently filed a claim for and received workmen's compensation benefits for some period of disability. The dates of the workmen’s compensation payments do not appear in the record.
     