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.
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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).
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*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.
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