Summary
In Unemployment Compensation Board of Review v. Sanchez, 21 Pa. Commw. 353, 346 A.2d 390 (1975), we held a claimant unavailable for work where, due to a heart condition, he restricted the kind and length of work he would accept.
Summary of this case from Unempl. Comp. Bd. of Review v. SmithOpinion
Argued September 12, 1975
October 15, 1975.
Unemployment compensation — Availability — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Question of fact — Scope of appellate review — Fraud — Error of law — Findings of fact — Substantial evidence — Conditions upon employment — Disability — Labor market.
1. A person is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless he is able to work and available for suitable work. [355]
2. In an unemployment compensation case the question of the availability of a claimant for work is largely one of fact. [355]
3. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania in the absense of fraud or an error of law is to determine whether the findings of the Unemployment Compensation Board of Review are supported by substantial evidence. [355]
4. A person who is rendered unavailable for work by self-imposed limitations and conditions on his employment or by a physical disability precluding acceptance of any substantial employment is ineligible for unemployment compensation benefits. [355-6]
5. A person who is able to work only one or two hours per day in light work because of a medical condition is properly found to be unattached to the labor market and unavailable for suitable work, precluding the receipt of unemployment compensation benefits.[356]
Argued September 12, 1975, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 1430 C.D. 1974, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Eugenio M. Sanchez, No. B-123183.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Decision of referee awarding benefits reversed by Board. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Guillermo L. Bosch, with him Stassen, Kostos and Mason, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Appellant had been an employee of the Department of Health, Education and Welfare, located in Pennsylvania, for approximately five years prior to receiving a disability retirement on October 24, 1973. Thereafter, appellant took up residency in Florida and filed an Interstate Claim for unemployment compensation benefits effective on October 28, 1973, against Pennsylvania. Due to a serious heart ailment, which was the cause of appellant's disability retirement, appellant limited the work which he would accept to one or two hours per day. In response to a form questionnaire, appellant stated he could not accept full-time work because his doctor prohibited it due to his condition. During an interview in November of 1973, appellant stated he was restricted to very light work, part-time, restricted to one or two hours daily. A statement submitted by appellant's doctor on November 11, 1973, indicated appellant was unable to accept gainful employment and that he was limited to "very light work — no more than one or two hours daily."
The Bureau of Employment Security (Bureau) denied benefits on the ground that appellant was not able and available for full-time work on the basis of the medical statement submitted. The referee reversed this determination, granting the claimed benefits. On appeal by the Bureau, the Unemployment Compensation Board of Review (Board) reversed the referee and denied the appellant's claims. The Board found that the applicant was not able and available for work, reasoning that he had so restricted his availability that he was not genuinely and realistically attached to the labor market.
Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P. S. § 801 (d), provides:
"Compensation shall be payable to any employe who is or becomes unemployed, and who —
"(d) Is able to work and available for suitable work. . . ."
The determination of availability is largely a question of fact for the Board. Graham v. Unemployment Compensation Board of Review, 14 Pa. Commw. 445, 322 A.2d 807 (1974); Collins Unemployment Compensation Case, 191 Pa. Super. 273, 156 A.2d 593 (1959). Our scope of review, absent fraud or error of law, is to determine if the findings of the Board are supported by substantial evidence. Chickey v. Unemployment Compensation Board of Review, 16 Pa. Commw. 485, 332 A.2d 853 (1975); Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commw. 131, 318 A.2d 398 (1974).
A claimant may render himself unavailable for work by imposing conditions and limitations on employment availability. Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commw. 577, 302 A.2d 866 (1973); Bernotas Unemployment Compensation Case, 175 Pa. Super. 437, 106 A.2d 638 (1954). Further, one who is physically unable to accept substantial employment does not meet the requirements of the cited Section of the Unemployment Compensation Law. Palovich Unemployment Compensation Case, 194 Pa. Super. 198, 166 A.2d 339 (1960); Romiski Unemployment Compensation Case, 169 Pa. Super. 106, 82 A.2d 565 (1951). Any other holding would transform unemployment compensation into health insurance. D'Yantone Unemployment Compensation Case, 159 Pa. Super. 15, 46 A.2d 525 (1946).
In the instant case, the appellant's availability for work has been limited by his medical condition to a maximum of two hours per day in light work. The Board found that this restriction, in fact, eliminated appellant's attachment to the labor market. We cannot disagree.
This case is distinguishable from Unemployment Compensation Board of Review v. Patsy, 21 Pa. Commw. 341, 345 A.2d 785 (1975), where a claimant with diminished physical capacities was granted an opportunity to prove the existence of work of a sedentary nature, suitable to his capabilities, by way of a remand. In the instant case, the claimant has already presented proof on the subject of work availability which was unconvincing to the Board. Further, appellant's limitations are substantially greater than those in Patsy, including a significant time limitation as well as a limitation as to the nature of acceptable work.
Accordingly, we enter the following
ORDER
NOW, October 15, 1975, the order of the Unemployment Compensation Board of Review, denying benefits to Eugenio M. Sanchez, is hereby affirmed.