Friday, March 09, 2018

UC - able and available - sec. 401(d)(1)


Cotto v. UCBR – Cmwlth. Court – MARCH 9, 2018 – unreported memorandum opinion*

The court affirmed the UCBR conclusion that the claimant did not show that she had an attachment to the job market,  in that she had failed to indicate what job that she could perform in which she could miss work on a regular basis, have a modified work schedule when she does attend work, attend frequent doctor’s appointments, and sleep as necessary throughout the day. R.R. at 179a. We discern no error in the UCBR’s conclusion.

Claimant’s restrictions so limited her availability “as to effectively remove [her] from the labor market.” Rhode, 28 A.3d at 243 (quoting Harwood, 531 A.2d at 826).   The court was sympathetic to Claimant’s health restrictions, but held that she did not produce any evidence of what job she is capable of performing within her restrictions or “that there is a reasonable opportunity for securing such work[.]”   The UCBR properly determined Claimant was not able and available for work. Rhode, 28 A.3d at 243.

----------------

From the opinion

Section 401(d)(1) of the UC 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 [the c]laimant has imposed conditions on his employment which so limit his availability as to effectively remove him from the labor market.’ Harwood v. UCBR, . . . 531 A.2d 823, 826 ([Pa. Cmwlth.] 1987). Rhode v. UCBR, 28 A.3d 237, 242-43 (Pa. Cmwlth. 2011)  “‘[T]he determination of whether a claimant is available for work as required by Section 401(d)[(1)] of the Law is a question of fact for the [UCBR.]’” Craig v. UCBR, 442 A.2d 400, 401 (Pa. Cmwlth. 1982) (quoting Goodwin v. UCBR, 378 A.2d 1308, 1310 (Pa. Cmwlth. 1977)). Further, “the [UCBR] is the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. . . . Where substantial evidence supports the [UCBR’s] findings, they are conclusive on appeal.” Ductmate Indus., Inc. v.  UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted).

===========================================
*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

>