Opinion
No. 31413
Decided December 22, 1948.
Unemployment compensation — Individual entitled to benefits, when — Section 1345-6 a (4) and (5), General Code — Claimant voluntarily quit work requiring strength beyond his physical condition — Able and available, but unemployed, to perform lighter work in other occupations.
CERTIFIED by the Court of Appeals for Allen county.
This case originated in the Court of Common Pleas of Allen county as an appeal from the decision of the Board of Review, Bureau of Unemployment Compensation of the state of Ohio. The appellants in this court are The Lennox Furnace Company, the employer, and the Board of Review. The appellee is Andrew F. Hinkle, the claimant.
The record of the proceedings before the Bureau of Unemployment Compensation discloses that Andrew F. Hinkle began work March 8, 1943, at the Lima Tank Depot (name changed to Lima Ordnance Depot, November 11, 1945), and worked until September 20, 1946, on which date he was sent to the doctor employed by the Lima Ordnance Depot for physical examination. That doctor stated his physical condition was such that he should have lighter work. Since no job of lighter work was then open he was laid off.
On September 26, 1946, he was employed by The Lennox Furnace Company as a sweeper. He quit that employment October 21, 1946, and shortly thereafter filed a claim with the Bureau of Unemployment Compensation. His claim was disallowed and upon an application for reconsideration the matter was heard by a referee who rendered the following decision:
"This matter comes before the referee on claimant's appeal, dated December 12, 1946, from the administrator's decision upon reconsideration, dated December 9, 1946, which held:
" 'Claimant quit his last job without just cause. His original claim is disallowed under the provisions of Section 1345-6 d (9) of the General Code. He will be ineligible for benefits until he has found re-employment and has earned at least four times his weekly benefit amount of $21.00.'
* * * * *
"Findings of Fact."On September 26, 1946, claimant was employed by The Lennox Furnace Company as a sweeper. His duties consisted of scattering steel shavings on the oily floor and after the shavings had soaked up the oil to load them on a wheelbarrow with a big scoop shovel and wheel them away. He testified that he is 58 years of age and that this work was too heavy for him. He testified that he became too ill to continue this work on October 21, and that his doctor advised him that he could not perform work of that kind. He is only able to do light work such as a watchman's job or something of a similar nature.
"Reason."Issue: (1) validity of claim (voluntarily quit work without just cause); (2) eligibility (availability).
"(1) Law applicable: Section 1345-6 d (9), of the Ohio General Code.
"Claimant was disqualified by virtue of Section 1345-6 d (9), Ohio General Code, which provides that no individual may be paid benefits for the duration of any period of unemployment with respect to which such individual voluntarily quit his work without just cause. Taking into consideration claimant's age and physical condition, it must be held that the work he was doing was too heavy for him and that he quit with just cause and is, therefore, not disqualified by virtue of the above-cited section.
"(2) Law applicable: Section 1345-6 a (4), Ohio General Code.
"Inasmuch as claimant's physical condition and age limit the type of work he can do to work of a very light nature, it must be concluded that he has limited his availability to such an extent as to be disqualified by virtue of Section 1345-6 a (4), General Code of Ohio, which provides that a claimant must be able to work and available for work in his usual trade or occupation.
"Decision."The decision upon reconsideration of the administrator, dated December 9, 1946, is hereby affirmed on the grounds that claimant was not available for work rather than on the basis of voluntarily quitting without just cause as formerly held.
"(Signed) Harry M. Price, Referee."
An application for further appeal having been overruled by the board of review, the claimant prosecuted an appeal to the Court of Common Pleas of Allen county, which court found that Hinkle was at all times during the period pertinent to this cause, available for work within the meaning of the statutes of the state of Ohio in such cases made and provided, and particularly within the meaning of Section 1345-6 a (4), General Code, and not disqualified by virtue of that section from receiving benefits under the unemployment compensation laws of the state, and that the decision complained of and appealed from herein is unlawful, unreasonable and against the manifest weight of the evidence.
The court reversed the decision of the board of review and remanded the cause to the Bureau of Unemployment Compensation for further proceedings.
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas and remanded the cause to that court for execution. The judges of the Court of Appeals ordered that the cause be certified to the Supreme Court for review and final determination on the ground that it is in conflict with the case of Mary Homer Stevens v. Selby Shoe Co., Inc., decided by the Court of Appeals of the Fourth Appellate District, Scioto county, Ohio, January 15, 1945.
Messrs. Reid Davison and Mr. F.W. Gooding, for appellee.
Mr. Hugh S. Jenkins, attorney general, Mr. John M. Woy and Mr. Roland B. Lee, for appellant Board of Review.
The Court of Appeals having affirmed the judgment of the Court of Common Pleas wherein the decision of the board of review was reversed upon the ground that its decision was "manifestly against the weight of the evidence," the single question presented is whether as a matter of law under the facts disclosed by the record in this case Hinkle was not available for employment.
The test to be applied in determining whether a claimant is eligible for unemployment compensation is prescribed by Section 1345-6 a, General Code, as amended (119 Ohio Laws, 836) effective October 1, 1941, which provided as follows:
"(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and
"(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act."
No material amendment has been made of the above-quoted portion of the statute.
By the amendment, above referred to, the first test instead of being "capable of and available for work" as theretofore provided, was materially amended to read: "able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted." (Emphasis supplied.)
The record in this case discloses substantial evidence that although the claimant was not able to perform the same work as theretofore which was in his usual trade or occupation, he was physically able to perform such work as that of a watchman and also of checking materials and duties of like character, and was, therefore, available for work in other occupations for which he had previously demonstrated his fitness.
It follows that the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas should be, and hereby is, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
TURNER, J., dissents.