Summary
In Molnar [v. Unemployment Compensation Board of Review, 397 A.2d 869, 870 (Pa. Cmwlth. 1979),] we determined that one who accepts a medical leave of absence has indicated a present intention to accept only temporary, as opposed to permanent, employment and that these limiting medical problems rebut the presumption of availability.
Summary of this case from Stevens v. Unemployment Comp. Bd. of ReviewOpinion
Argued October 30, 1978
February 20, 1979.
Unemployment compensation — Able and available to work — Burden of proof — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Physical problem — Leave of absence status — Presumption of availability — Absence of evidence.
1. An applicant for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, must prove that he is able and available for work, and is aided in that proof by the presumption of availability arising when he registers for work with the Bureau of Employment Security. [520]
2. The presumption that a registrant for work is able and available for work and thus not precluded from receipt of unemployment compensation benefits is rebutted by evidence that the registrant's physical condition limits the type of job he can accept and that he is currently on leave status from his permanent employment to which he hopes to return, and once the presumption is thus rebutted the registrant cannot prevail in the absence of some evidence of availability. [521-2]
Judge CRUMLISH, JR. filed a dissenting opinion which was substantially as follows:
1. When an applicant for unemployment compensation benefits proves that he is able to do some kinds of work, remand is required by an appellate court where the record is not clear as to whether suitable work was available to the applicant. [522]
Argued October 30, 1978, before Judges CRUMLISH, JR., MENCER and CRAIG, sitting as a panel of three.
Appeal, No. 1241 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert N. Molnar, No. B-139833-B.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Catherine A. Davis, with her Paul Osborne, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
Robert N. Molnar (claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) that he is not able and available for suitable work and therefore is ineligible for benefits pursuant to 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). We affirm.
Claimant suffers from allergies which are aggravated by exposure to dust, smoke, fumes, and particulate matter. His condition became so severe that his physician advised him to leave his employment with the United States Postal Service, where he was exposed to dust, until his allergies could be stabilized. On April 20, 1976, claimant was granted a one-year leave of absence by the Postal Service because of his allergies. If, at the end of that period, claimant's condition had not improved sufficiently to allow him to return to work, his employment with the Postal Service would be terminated. In the interim, claimant's physician advised him not to accept any other position which involved exposure to dust, smoke, fumes, or particulate matter.
Claimant's application for unemployment compensation for the period October 2, 1976 through October 23, 1976 was denied by the Bureau of Employment Security on the basis of Section 401(d). After two hearings, a referee and the Board agreed, reasoning that, because of his physical condition and his leave-of-absence status, claimant was not genuinely and realistically attached to the labor force.
Claimant had the burden to establish that he is able and available for suitable work as required by Section 401(d). Koba v. Unemployment Compensation Board of Review, 29 Pa. Commw. 264, 370 A.2d 815 (1977). To meet this burden, claimant relies almost exclusively upon the presumption that one who registers for work with the Bureau of Employment Security meets the requirements of Section 401(d). See, e.g., Baker v. Unemployment Compensation Board of Review, 18 Pa. Commw. 503, 507, 336 A.2d 671, 674 (1975).
This presumption is rebuttable, however, by evidence that a claimant's physical condition limits the type of work he is available to accept, Baker, supra, or that he has voluntarily placed other restrictions on the type of job he is willing to accept, see Pinto Unemployment Compensation Case, 168 Pa. Super. 540, 79 A.2d 802 (1951). In this case, claimant cannot accept certain jobs because of his allergies, and by accepting a leave of absence he has indicated a present intention to accept only temporary, as opposed to permanent, employment. See Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commw. 241, 385 A.2d 634 (1978). These limitations, while not disqualifying in themselves, see Tokar, supra, are sufficient to rebut the presumption of availability. See Baker, supra.
Once a presumption has been rebutted, it disappears and has no further effect upon the outcome of the case. Waters v. New Amsterdam Casualty Co., 393 Pa. 247, 144 A.2d 354 (1958). Thus, claimant cannot rely upon the presumption of availability to discharge his burden. Rather, he had an affirmative obligation to produce evidence that he was able to do some type of work and that there was a reasonable opportunity for securing such work. See, e.g., Unemployment Compensation Board of Review v. Patsy, 21 Pa. Commw. 341, 345 A.2d 785 (1975).
Claimant produced no such evidence. When asked whether any job existed that he could perform with his limitations, claimant said he didn't know what, if anything, he was qualified to do. Although claimant also testified that he might be qualified as a "drafter" or as an office worker, there is no indication that such jobs were available, either on a permanent or temporary basis, or that claimant could reasonably hope to secure such jobs. In contrast, the claimant in Tokar, supra, was a college graduate in excellent health who was capable of performing any number of jobs, skilled and unskilled, and who did in fact secure a part-time job. We remanded the case because those facts provided a sufficient basis upon which the Board could have concluded that a reasonable possibility existed for the claimant to secure employment despite her leave-of-absence status. No such facts appear in the record of this case, however, and we must therefore hold that benefits were properly denied.
In Patsy, supra, the claimant had similarly failed to meet his burden, but we nevertheless remanded to allow him another opportunity to do so. The basis of the remand was that the referee had failed to fulfill his duty under the Board's regulations to assist claimants who are not represented by counsel in the presentation of their cases. The claimant in this case was represented by counsel and had ample opportunity to prove his case, and a remand is therefore unnecessary.
ORDER
AND NOW, this 20th day of February, 1979, the order of the Unemployment Compensation Board of Review, dated May 5, 1977, denying benefits to Robert N. Molnar, is hereby affirmed.
I respectfully dissent.
I would remand for the taking of additional testimony on the sole issue of employment opportunity. Although I agree with Judge MENCER's conclusion that the presumption of availability has been rebutted, I must disagree that the claimant has not met his affirmative burden of showing that he was able to do work of some nature. But whether suitable work was available is unclear on the record.
Accordingly, I would remand for this limited purpose.