Opinion
C.A. No. 07A-03-002 JTV.
Submitted: September 25, 2007.
Decided: December 31, 2007.
Upon Consideration of Appellant's Appeal From Decision of Unemployment Insurance Appeal Board AFFIRMED.
Eileen M. Ford, Esq., Legal Services Corporation of Delaware, Dover, Delaware.Attorney for Appellant.
Mary Paige Bailey, Esq., Department of Justice, Wilmington, Delaware. Attorney for Unemployment Insurance Appeal Board.
ORDER
Upon consideration of the briefs of the parties and the record of the case, it appears that:
1. This is an appeal from a decision of the Unemployment Insurance Appeals Board ("Board"). The Board's decision was that the claimant, Oscar Tucker, left work involuntarily because of illness, but failed to establish that he had become able to work and available for work. Because of this latter element, the Board found, he was disqualified for unemployment benefits. He appeals the Board's finding that he was disqualified from benefits because he was not able to work and not available for work.
19 Del. C. § 3314(1), 3315(3).
2. In reviewing the decisions of the Board, the court must determine whether the findings and conclusions of the Board are free from legal error and supported by substantial evidence in the record. The function of the reviewing court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. It also determines if the Board made any errors of law.
See Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); Ponchvatilla v. United States Postal Service, Del. Super., C.A. No. 96A-06-19, Cooch, J. (June 9, 1997) (Mem. Op.) at 2; 19 Del. C. § 3323(a) ("In any judicial proceeding under this section, the findings of the [UIAB] as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law.").
General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct. 1986), appeal Dismissed, Del. Supr., 515 A.2d 397 (Del. 1986).
Johnson v. Chrysler, 213 A.2d at 66.
3. The portion of the Board's decision which concludes that the claimant left work involuntarily for medical reasons is not disputed and need not be addressed. The issue is whether, after so leaving his employment, he was or had become able to work and available for work.
4. The claimant's doctor issued a note stating that his physical work limitations were "no strenuous physical activity, heavy lifting, etc." Based upon the testimony of the claimant and his former employer's representative, the Board concluded that he could not return to his former employment, which involved heavy lifting as a machinist. It further concluded that the claimant's work history had been in skilled trades, as a machinist and painter, which require strenuous activity. The claimant contended that he was available for "clerical work," but the Board found that he did not possess skill for such work. Based upon these factors, the Board concluded that the only work which the claimant could perform was physical work which was no longer possible due to his medical limitations. This led to the Board's ultimate conclusion that the claimant was not able to work and available for work.
5. Availability to work "incorporates both the requirement of ability to work and qualification through skill, training or experience for a particular occupation, commonly expressed in terms of `an identifiable labor market.'" The claimant bears the burden of establishing that he belongs to an identifiable labor market. The labor market must be described in terms of the skill of the individual. The claimant is not required to be able to work in exactly the same job that he previously held. However, he must show that he possesses certain skills that would attach him to an identifiable labor market. This burden may be shown by reviewing the prior tasks demanded of the claimant.
Petty v. Univ. of Delaware, 450 A.2d 392, 395 (Del. 1982) (citing Harper v. Unemployment Ins. Appeal Bd., 293 A.2d 813 (Del.Super.Ct. 1972)).
Petty, 450 A.2d at 395.
Id. (citing Harper v. Unemployment Ins. Appeal Bd., 293 A.2d 813 (Del.Super.Ct. 1972)); Ashmore v. Unemployment Comp. Comm'n, 86 A.2d 751, 753 (Del.Super.Ct. 1952).
Ashmore, 86 A.2d at 753.
See Ashmore, 86 A.2d at 753 (referring to the varied types of services that the claimant had provided in the past that supported attachment to an identifiable labor market).
6. The claimant contends that the Board was too narrow in its view of the standard, "able to work and available for work." He contends that the physician's note was an authorization to return to work with the limitations noted, and that the claimant was, therefore, able to work and available for work. He further contends that it was error for the Board to limit the scope of "work" in his case to skilled trades requiring strenuous activity. He contends that he is not limited to finding employment in his usual type of work and that the Board failed to consider ancillary skills he possessed which enable him to work in a labor market, such as one involving clerical skills. Evidence of such ancillary skills, he contends, includes the fact that he filled out document papers and shipment papers in his previous employment as a machinist.
7. Upon careful consideration of the record, I am satisfied that the Board did consider the points contained within the contentions the claimant makes. The Board concluded, however, that evidence that the claimant possessed clerical skills was not sufficient. It reasoned that the paperwork performed by the claimant was of a very limited nature, not equating to true clerical work, that he was not adept at the use of a computer, and that there was no prior incidence of him performing work not requiring strenuous activity.
8. As mentioned, the burden was upon the claimant to show that there was some identifiable labor market within which he could work. This standard requires more than just a hypothetical possibility that a claimant might be able and available to work in some field or another. I find that the Board's decision that the claimant did not meet his burden of showing that he was able to work and available for work, as those phrases are construed under the pertinent statutes, is supported by substantial evidence and is free from legal error.
9. Therefore, the decision of the Board is be affirmed.
IT IS SO ORDERED.