Opinion
No. 2141 C.D. 2011
04-25-2012
Kimberly L. Seibold, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Kimberly L. Seibold (Claimant) petitions this Court for review of the October 18, 2011 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of the Referee finding Claimant eligible for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law), but ineligible for UC benefits under Section 401(d)(1) of the Law, denying Claimant UC benefits beginning with waiting week ending June 4, 2011, and finding Claimant able and available for work effective June 28, 2011. Claimant presents one issue for this Court's review: whether Claimant met her burden of proving she was able and available for work at all relevant times. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
43 P.S. § 801(d)(1).
Claimant was employed as a full-time investment specialist with Vanguard Group (Employer) until June 1, 2011, when Employer discharged her for completing a worker's incident report and for completing a medical accommodation form requesting a different desk chair. On June 2, 2011, Claimant applied for UC benefits. On June 20, 2011, the Erie UC Service Center issued a determination finding that although Claimant was eligible under Section 402(e) of the Law for UC benefits, Claimant had not sustained her burden of proving that she was able and available for suitable work and, thus, was ineligible for unemployment compensation benefits under Section 401(d)(1) of the Law.
Claimant appealed, and on August 8, 2011, a hearing was held by a Referee. Claimant appeared pro se and Employer did not appear at the hearing. On August 9, 2011, the Referee mailed her decision finding that Claimant was ineligible for benefits under Section 401(d)(1) of the Law, beginning with waiting week ending June 4, 2011, but that Claimant was able and available for work effective June 28, 2011. Claimant appealed to the UCBR. On October 18, 2011, the UCBR affirmed the Referee's decision, and adopted and incorporated the Referee's findings and conclusions. Claimant appealed to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). --------
Claimant argues that she met her burden of proving that she was able and available for work. Specifically, she argues that she presented a doctor's note dated June 2, 2011, and undisputed testimony that proved she was able and available for work which the UCBR overlooked.
In Rohde v Unemployment Compensation Board of Review, 28 A.3d 237 (Pa. Cmwlth. 2011), this Court clearly described the analysis necessary to determine whether a claimant is eligible for benefits under Section 401(d)(1) of the Law:
Section 401(d)(1) of the Law provides, in part, that [c]ompensation shall be payable to any employee who is or becomes unemployed and who . . . . [i]s able to work and available for suitable work. The burden of proving availability for suitable work is on the claimant. An unemployed worker who registers for unemployment is presumed to be able and available for work. This presumption is rebuttable by evidence that a claimant's physical condition limits the type of work he is available to accept or that he has voluntarily placed other restrictions on the type of job he is willing to accept. If the presumption of availability is rebutted, the burden shifts to the claimant to produce evidence that he is able to do some type of work and that there is a reasonable opportunity for securing such work. The real question is whether Claimant has imposed conditions on his employment which so limit his availability as to effectively remove him from the labor market.Id., 28 A.3d at 242-43 (citations and quotation marks omitted).
In the instant case, Claimant established a presumption of availability for employment by registering for UC benefits. Id. This presumption, however, is rebuttable, and, therefore, we must next consider whether Claimant's presumption of availability was effectively rebutted when she submitted an Internet Initial Claims form on June 2, 2011 that included the following responses:
Are you able to work? NReproduced Record (R.R.) at 7a. Claimant's admissions did not just limit or restrict her availability to work but completely removed her from the labor market.
If no, please explain. Arthritis in Spine due to failed spinal surgery, Lambrum [sic] Hip Tears
Are you available for work? N
If no, please explain. Must have anthroscopic (sic) Hip Surgery
Once a presumption has been rebutted, it disappears and has no further effect upon the outcome of the case. Thus, claimant cannot rely upon the presumption of availability to discharge [her] burden. Rather, [she] had an affirmative obligation to produce evidence that [she] was able to do some type of work and that there was a reasonable opportunity for securing such work.Molnar v. Com., Unemployment Compensation Bd. of Review, 397 A.2d 869, 870 (Pa. Cmwlth. 1979) (citation omitted).
At the hearing, Claimant presented two doctor's notes. The first from Claimant's chiropractor, Carl Hiller, D.C. (Dr. Hiller), with a date of service of June 2, 2011, which recommended that Claimant be assigned light-duty work and utilize an ergonomic chair. The second from Claimant's physician, Ronald L. Werrin, M.D., dated June 28, 2011, that stated Claimant was able and available for work. The Referee specifically questioned Claimant regarding these notes as follows:
R: Okay. Now I see that your doctor submitted a note that you are able and available for work.R.R. at 30a. The Referee followed up and asked Claimant if there was anything further she wanted to add, to which she responded: "No, that's it. I just feel that, you know, I'm able and available to work and I'm - you know, I'm looking - I'm actively looking." R.R. at 30a. While Dr. Hiller's note may have established that Claimant was able to do some type of work as of June 2, 2011, it did not establish that she had made herself available to do so. This result is especially true in light of the fact that on June 2, 2011 Claimant filled out a form wherein she stated that she was not able or available to work due to "arthritis in the spine . . ." and a need for "anthroscopic (sic) Hip Surgery." R.R. at 7a. Thus, Claimant met her burden of proving that she was able and available for work effective June 28, 2011, but she did not meet her burden of proving that she was able and available for work as of the week ending June 4, 2011.
C: Yes.
R: And that's as of June 28, 2011?
C: Yes
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 25th day of April, 2012, the October 18, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge