Opinion
C. A. No. 01A-06-008
Submitted: December 4, 2001
Decided: March 28, 2002
Upon Consideration of Appellant's Appeal From Decision of the Unemployment Insurance Appeal Board
AFFIRMED
Janice M. Briddell, pro se.
James J. Hanley, Esq., Deputy Attorney General, Wilmington, DE.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. This is an appeal from a decision of the Unemployment Insurance Appeal Board ("UIAB" or "the Board"), which denied the claimant's application for unemployment benefits. Janice M. Briddell had been a bus driver for Delaware Transit Corporation, known as DART First State, since March 20, 1994. It is undisputed that in March 2000 she became physically disabled and was not able to perform her job as a bus driver. Medical records which are in the record list her condition as cervical spondylosis, cervical facet dys., occipital H/A. Under the terms and conditions of her employment she was placed on short term medical disability, and her job was held open for two years in case she was able to return to work during that period. On March 18, 2001, she filed for unemployment benefits. A claims deputy found that she was disqualified from benefits because her unemployment was caused by her disability which prevented her from working. The appeals referee and the UIAB agreed with that determination. Ms. Briddell then filed this appeal.
2. The statutory basis for the Board's denial of benefits is 19 Del. C. § 3315(8), which provides that a claimant is disqualified from benefits under the following circumstances:
If it shall be determined by the Department that total or partial unemployment is due to the individual's inability to work. Such disqualification to terminate when the individual becomes able to work and available for work as determined by a doctor's certificate and meets all other requirements under this title.
This section is consistent with 19 Del. C. § 3314(3), which provides that a claimant is eligible to receive benefits if the claimant "[i]s able to work and is available for work and is actively seeking work," and with 19 Del. C. § 3315(1) which provides that, if an individual leaves work involuntarily due to illness, "no disqualification shall prevail after the individual becomes able to work and available for work . . . but the Department shall require a doctor's certificate to establish such availability."
3. An individual seeking unemployment benefits is "available for work" only to the extent that "she is willing, able and ready to accept employment which she has no good cause to refuse, that is, she is genuinely attached to the labor market." "Available for work" has been further explained as follows:
Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 395 (1982) (citing Ashmore v. Unemployment Compensation Commission, Del. Super., 86 A.2d 751 (1952)).
The determination of `availability' for unemployment compensation purposes is a subjective one [in the sense that] the ability of a particular employee to secure work must be measured by the skill of that employee in an identifiable labor market.
As so defined, the term `availability for employment' 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.'
Id. at 395 (quoting Harper v. Unemployment Insurance Appeal Board, Del. Super., 293 A.2d 813 (1972)).
Petty, 450 A.2d at 395 (citing Harper, supra.)
A labor market for a person exists when the kind of work which a claimant is able to perform is generally performed in the area where he or she is seeking employment. It is not required that the claimant be available for his or her usual type of work. Availability for work in another type of employment is sufficient.
Harper, 293 A.2d at 815 (citing Ashmore, 86 A.2d at 753).
Ashmore, 86 A.2 at 753.
4. In reviewing the decisions of the UIAB, this 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 Insurance Appeal Board v. Martin, Del. Supr., 431 A.2d 1265 (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, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965)
Oceanport Ind. V. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battisa v. Chrysler Corp., Del. Super., 517 A.2d 295, 197 (1986), app. Dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler, 213 A.2d at 66.
Title 29 Del. C. § 10142(d).
5. Ms. Briddell has offered the Court documents which are not part of the record below. Pursuant to Superior Court Civil Rule 72(g), however, consideration of the appeal is confined to the record of the proceedings below.
6. As mentioned, it appears not to be disputed that when the claimant left work in March 2000, she did so because her disability prevented her from working. She contends, however, that her condition has improved and that she is now able to work and available for work and, therefore, has become eligible for benefits. She contends that the Board erred by concluding otherwise.
7. The controversy centers on two disability statements from Mid-Atlantic Pain Institute, P.A., one dated March 2, 2001 and one dated May 3, 2001. The March 2, 2001disability statement stated that the claimant was partially disabled. It appears that all of her disability statements for periods prior to March 2, 2001 stated that she was totally disabled. The March 2 statement, therefore, indicated a change in her condition. It stated that Ms. Briddell could work eight hours per day subject to restrictions. It contains a number of preprinted restrictions with a box opposite each. Boxes were checked indicating that Ms. Briddell's restrictions were "no prolonged standing/walking, no prolonged sitting, no lifting over ten pounds, no overhead work, no squatting, crawling, kneeling or stooping, no repetitive bending and twisting." To the right of no prolonged standing, walking or sitting, is the notation "to tolerance." Under "other," there was a handwritten notation of "no repetitive pushing or pulling," plus another restriction which is not fully legible but appears to be no working above the head. Finally, under comments, the form states "sedentary work." The appeals referee had this disability statement when he conducted his hearing on May 2, 2001. At that hearing the claimant testified that she had just seen her doctor the previous Thursday, April 26, and that her doctor told her she could return to work. The appeals referee invited her to obtain an updated disability statement from that visit and submit it for his consideration. Ms. Briddell did, in fact, obtain an updated statement dated May 3, 2001, which she submitted to the Department of Labor on or about May 7. The appeals referee's decision was issued May 10. He concluded that the claimant's ability to work was "severely restricted" and that she "has not been able to work or available for work."
8. Ms. Briddell argues to this Court that the appeals referee did not consider the May 3 disability statement. That may be true. His decision makes no mention of it. He was aware from her testimony that her last visit to Mid-Atlantic Pain Institute had been April 26, and only the March 2 disability statement is referred to in his decision. However, the May 3 statement was considered by the Board. It was filled out by a different representative of Mid-Atlantic Pain Institute than the one who filled out the March 2 statement. It was the same as the March 2 statement in that it stated that the claimant was partially disabled and able to work 8 hours a day, subject to restrictions. It was different from the March 2 statement in that none of the boxes on the form were checked. However, along side "no prolonged standing/walking, no prolonged sitting," there was a handwritten notation that those activities were "as tolerated." Under comments, a handwritten notation limited the claimant's activity to "sedentary, light duty work." After the Board listened to additional testimony from the claimant and considered the May 3 disability statement and the appeals referee's decision, it adopted the findings of fact and conclusions of law of the appeals referee and concluded that the "claimant is medically unable to work at her job with employer, given her restrictions." In its decision it stated that the claimant's testimony verified that her restrictions were as stated in the May 3 disability statement, "previously considered by the Appeals Referee."
9. The Board's reference to the May 3 statement as having been previously considered by the appeals referee may not be correct; and, as discussed above, the claimant's "availability for work" under unemployment compensation law is not limited to her availability to return to her specific job as a bus driver. However, I am not persuaded that these shortcomings in the Board's written decision deprive it of a substantial evidentiary basis or render it legally incorrect. The Board did adopt the findings and conclusions of the appeals referee and it did conclude that the additional evidence it received was supportive of that decision. When one compares the March 2 and May 3 disability statements, it is not at all clear that they were intended to express a materially different opinion on the claimant's ability to work. Both limited her to "sedentary," or "sedentary, light duty work." Both indicated that her standing, walking and sitting were limited to "as tolerated." A showing that a person is ready for "sedentary, light duty" work "as tolerated" is not necessarily sufficient by itself to establish that the person is "available for work" for purposes of unemployment compensation. Any person whose standing, walking and sitting are restricted to a self-determined tolerance is of some questionable employability. There is nothing in the record in this case to suggest any particular type of work for which the claimant may be qualified with those restrictions. The burden is on the claimant to establish that she is entitled to unemployment benefits. After careful consideration, I have concluded that the Board's decision that the claimant is not able to work or available for work is supported by substantial evidence and is free of legal error.
Petty, 450 A.2d at 395 (citing O'Neal's Bus Service, Inc. v. Employment Security Commission, Del. Super., 269 A.2d 247, 249 (1970)).
7. Therefore, the decision of the UIAB is affirmed.
IT IS SO ORDERED.