W.T. McCall v. UCBR ( 2019 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Warren T. McCall,                          :
    Petitioner      :
    :
    v.                            :   No. 197 C.D. 2019
    :   Submitted: September 13, 2019
    Unemployment Compensation                  :
    Board of Review,                           :
    Respondent             :
    BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE BROBSON                           FILED: December 5, 2019
    Warren T. McCall (Claimant) petitions for review of an order of the
    Unemployment Compensation Board of Review (Board). The Board affirmed a
    decision of the Unemployment Compensation Referee (Referee), denying Claimant
    unemployment compensation benefits pursuant to Section 401(d)(1) of the
    Unemployment Compensation Law (Law).1 As set forth below, we affirm.
    Claimant applied for unemployment compensation benefits on
    October 14, 2018, while on medical leave from his position as a Mental Health
    Technician with Friends Hospital-Universal Health (Employer). (Certified Record
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
    § 801(d)(1).
    (C.R.), Item No. 1 at 1; Item No. 2 at 1-2.) The UC Service Center (Service Center)
    determined that Claimant was not ineligible for unemployment compensation
    benefits under Section 402(b) of the Law,2 relating to voluntarily quitting without
    cause of a necessitous and compelling nature, but ultimately determined that
    Claimant was ineligible for unemployment compensation benefits under
    Section 401(d)(1) of the Law, relating to being able and available for work. (C.R.,
    Item No. 6 at 1.) Claimant appealed the Service Center’s determination. (C.R., Item
    No. 7.) A Referee conducted a hearing at which time Stephanie Mellott (Mellott),
    Employer’s Human Resources Generalist, and Claimant testified. (C.R., Item
    No. 10 at 1.)
    Mellott testified that Claimant last worked for Employer on
    October 10, 2018, as a full-time employee. (Id. at 3.) Claimant did not voluntarily
    quit nor did Employer discharge him. (Id. at 4.) Instead, Claimant took an approved
    medical leave of absence in order to have leg surgery that started on
    October 11, 2018, with a tentative end date of January 27, 2019. (Id.) Employer did
    not receive any notification from Claimant or Claimant’s doctor as to whether
    Claimant was “able and available for some work.” (Id.) Light-duty work would not
    have been available for Claimant had Employer received notification from either
    Claimant or Claimant’s doctor that he was medically fit to be “able and available for
    some work,” because light-duty work is for workers’ compensation cases only. (Id.)
    Employer considered Claimant still to be employed as a full-time Mental Health
    Technician. (Id. at 3.)
    2
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
    § 802(b).
    2
    Claimant testified that he had surgery on October 24, 2018. (Id. at 5.)
    On January 27, 2019, Claimant received a letter from his doctor that he could
    possibly return to work in early February 2019. (Id.) Claimant’s doctor informed
    him that he would be “able to do work using [his] hands and able to get to work.”
    (Id.) Claimant admitted that he had not had a conversation with Employer regarding
    his ability to “return to work and perform limited duties.” (Id.) Furthermore,
    Claimant’s doctor had not specifically told Claimant that he was “able to return to
    work and perform limited duties,” and Claimant had not asked his doctor this
    question. (Id.)
    Following the hearing, the Referee issued a decision concluding that
    Claimant was ineligible for unemployment compensation benefits. (C.R., Item
    No. 11 at 1-3.) The Referee issued the following findings of fact:
    1.   The Claimant was employed as a Mental Health
    Technician from September 22, 2014[,] until
    October 10, 2018; at the time of separation, he was
    working full-time . . . .
    2.   On October 11, 2018, the Claimant began an
    Employer-approved leave of absence for medical reasons.
    3.    Documentation submitted by the Claimant to the
    Employer in support of his request for a leave of absence
    for medical reasons indicated that he would be unavailable
    for work from October 11, 2018[,] through
    January 27, 2019.
    4.    The      Claimant      underwent       surgery   on
    October 24, 2018; as of the date of the hearing, the
    Claimant’s physician had not advised the Claimant that he
    could return to work and[,] if so, whether his ability to
    work was subject to restrictions or limitations.
    3
    5.     The Claimant filed an application for benefits
    effective October 14, 2018.
    (Id. at 1-2.) The Referee offered the following reasoning:
    [T]he Claimant has demonstrated that [he] meets all three
    prongs of the three-prong test set forth by the [a]ppellate
    [c]ourts to establish necessitous and compelling reasons
    for leaving a job due to health conditions for the period at
    issue in this appeal i.e., the period beginning with the
    waiting week ending October 20, 2018. As a result,
    benefits cannot be denied to the Claimant under
    Section 402(b) of the Law.
    ....
    Based on the testimony received at the hearing, the
    Referee concludes that the Claimant was not able and
    available for work for the waiting week ending
    October 20, 2018; therefore, benefits must be denied
    under Section 401(d)(1) of the Law.
    A denial of benefits under Section 401(d)(1) [of the
    Law] is subject to review on a week-to-week basis and a
    denial of benefits for a specific claim week(s) does not
    prejudice a claimant’s eligibility for any future week.
    The Claimant is free to notify the Employer and the
    Service Center and to supply supporting documentation
    when released to seek suitable employment by his
    physician.
    (Id. at 2-3.)
    Claimant appealed the Referee’s decision to the Board. (C.R., Item
    No. 12.) The Board, adopting and incorporating the Referee’s findings of fact and
    conclusions of law, concluded that the Referee properly determined that Claimant
    was not eligible for unemployment compensation benefits pursuant to
    Section 401(d)(1) of the Law. (C.R., Item No. 14.) The Board noted that “[w]hether
    a claimant is able and available for work is a week-to-week test. The claimant should
    4
    contact his local . . . Service Center and file a new application for benefits if and
    when he becomes ‘able and available’ for work.” (Id.)
    On appeal,3 Claimant argues that the Board erred when it found that he
    was not able and available for work. Claimant also argues that the Board erred in
    its determination that he was ineligible for unemployment compensation benefits
    under Section 401(d)(1) of the Law. Claimant essentially argues that he was able
    and available for work, because, as shown from his testimony before the Referee, he
    was able to perform limited work with his hands. Claimant contends that the Law
    only requires a showing that he is able and available to perform some kind of work,
    not that he was able to perform his normal position with Employer. The Board
    argues that it did not err in denying Claimant unemployment compensation benefits,
    because Claimant had failed to offer any evidence as to what types of jobs he could
    actually and medically perform with his hands, that such jobs were reasonably
    available to him, and that he was actively seeking out such jobs. We agree with the
    Board.
    Pursuant to Section 401(d)(1) of the Law, a claimant is eligible for
    unemployment compensation benefits when he is, or becomes, unemployed and is
    able and available for suitable work. It is well established that a claimant enjoys a
    rebuttable presumption that he is “able and available for work” when he applies for
    unemployment compensation benefits. GTE Prods. Corp. v. Unemployment Comp.
    Bd. of Review, 
    596 A.2d 1172
    , 1173 (Pa. Cmwlth. 1991), appeal denied,
    
    607 A.2d 257
    (Pa. 1992). To effectively rebut this presumption, an employer must
    show evidence “that a claimant’s physical condition limits the type of work he is
    3
    This Court’s standard of review is limited to determining whether constitutional rights
    were violated, whether an error of law was committed, or whether necessary findings of fact are
    supported by substantial evidence. 2 Pa. C.S. § 704.
    5
    available to accept . . . or that he has voluntarily placed other restrictions on the type
    of job he is willing to accept.” Molnar v. Unemployment Comp. Bd. of Review,
    
    397 A.2d 869
    , 870 (Pa. Cmwlth. 1979). After the presumption is rebutted, the
    burden of proof shifts back to the claimant to prove affirmatively that he was “able
    to do some type of work and that there was a reasonable opportunity for securing
    such work.” Id.; see also Ruiz v. Unemployment Comp. Bd. of Review, 
    911 A.2d 600
    , 603 (Pa. Cmwlth. 2006).         A claimant successfully proves that he has a
    “reasonable opportunity” to obtain work that he is able to perform when he provides
    evidence, on the record, that shows that such jobs exist or by showing the reasonable
    possibility that he could secure any of the offered jobs. Pizzo v. Unemployment
    Comp. Bd. of Review, 
    424 A.2d 1021
    , 1022 (Pa. Cmwlth. 1981).
    Here, Employer effectively rebutted the presumption of Claimant’s
    ability and availability for work. At the hearing before the Referee, Mellott testified
    that Claimant took a medical leave of absence between October 11, 2018, and
    January 27, 2019, to have surgery. (C.R., Item No. 10 at 4.) Employer did not
    receive any notification from Claimant or Claimant’s doctor that he had been cleared
    to return to work in any capacity. (Id.) In addition, when asked on his Internet Initial
    Claims form whether he was “able to work,” Claimant responded that he was not
    able to work because “[w]alking aides (ex: crutches and canes) are not allowed . . .
    [in the hospital], including for staff.” (C.R., Item No. 2 at 4.) On the same form,
    Claimant also responded to the question “[a]re you available for work” that he was
    not available for work because his doctor had informed him that his surgery would
    require “extended healing time.”         (Id.)   Mellott’s testimony and Claimant’s
    responses to the Internet Initial Claims form effectively rebutted the presumption
    that Claimant was able and available for work. As a result, the burden shifted to
    6
    Claimant to prove that (1) he was able to do some work, and (2) he had a reasonable
    opportunity to obtain such work.
    In this case, Claimant essentially argues that he met this burden by
    testifying before the Referee that he was able to do work with his hands and was
    able to get to work. The Board, instead, argues that Claimant failed to meet his
    burden by failing to offer any evidence as to what types of jobs he could actually
    perform in his condition with his hands, that such jobs were reasonably available,
    and that he was actively seeking such work. We agree with the Board. While it is
    true that the Law requires that a claimant must show he is able and available for
    some type of work, the Law also requires that the claimant must show (1) what type
    of work he is capable of doing and (2) that there is a reasonable possibility that he
    would be able to obtain such a position.
    Claimant relies upon our decisions in Pennsylvania Electric Co. v.
    Unemployment Compensation Board of Review, 
    458 A.2d 626
    (Pa. Cmwlth. 1983),
    and Harwood v. Unemployment Compensation Board of Review, 
    531 A.2d 823
    (Pa.
    Cmwlth. 1987). These cases are distinguishable. In Pennsylvania Electric Co., the
    Court held that the claimant was able and available for work because the claimant
    had testified that “she [was] capable of performing any work indoors which does not
    require lifting,” had interviewed with job counselors, and had researched job
    availabilities in the local newspaper. Pa. Elec. 
    Co., 458 A.2d at 628
    . The claimant
    in Pennsylvania Electric Co., therefore, not only provided evidence that she was able
    and available for work, but she also provided testimony detailing what type of work
    she could perform in her medical condition (any work indoors that did not require
    lifting) and provided testimony that she had the reasonable possibility of obtaining
    such a position based off of her job interviews and research. 
    Id. In Harwood,
    the
    7
    Court held that the claimant was able and available for work because the claimant
    was available for any and all work except for a “case worker” position, and as he
    actively sought employment with his employer and elsewhere. 
    Harwood, 531 A.2d at 826
    . The claimant in Harwood also proved both that he was able and available
    for work and that there were jobs that he could do (in this case, any job other than a
    “case worker”) and that he had the reasonable possibility to obtain such work (as he
    was actively applying for other positions). Additionally, the claimant’s doctor had
    released the claimant to perform any job other than as a “case worker.” 
    Id. Here, in
    contrast to both of these cases, Claimant provided only his own
    testimony that he was able to work with his hands and was able to get back to work.
    (C.R., Item No. 10 at 1-2, 4-6.) Claimant failed to provide any evidence that would
    show what type of work he would be able to perform safely with his hands in his
    medical condition and also failed to list a single job that he could do. Merely stating
    that a claimant is able and available for work is not nearly enough and is certainly
    not the end of the inquiry as required by the Law. A claimant must also show that
    there are jobs available that he would be able to perform and that these same jobs
    are reasonably available to him.
    Accordingly, we affirm the order of the Board.
    P. KEVIN BROBSON, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Warren T. McCall,                   :
    Petitioner     :
    :
    v.                       :   No. 197 C.D. 2019
    :
    Unemployment Compensation           :
    Board of Review,                    :
    Respondent      :
    ORDER
    AND NOW, this 5th day of December, 2019, the order of the
    Unemployment Compensation Board of Review is AFFIRMED.
    P. KEVIN BROBSON, Judge
    

Document Info

Docket Number: 197 C.D. 2019

Judges: Brobson, J.

Filed Date: 12/5/2019

Precedential Status: Precedential

Modified Date: 12/5/2019