           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth J. Petri,                            :
                                             : No. 1659 C.D. 2015
                            Petitioner       : Submitted: January 29, 2016
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :
                                             :
                            Respondent       :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                 FILED: April 20, 2016



              Kenneth J. Petri (Claimant) petitions pro se for review of the August
10, 2015 order of the Unemployment Compensation Board of Review (Board),
which affirmed a referee’s determination and held that Claimant was ineligible for
benefits under Section 401(d)(1) of the Unemployment Compensation Law (Law). 1
We affirm.



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§801(d)(1). Section 401(d)(1) provides that “compensation shall be payable to any employe who
is or becomes unemployed, and who … [i]s able to work and available for suitable work …” 43
P.S. § 801(d)(1).
            Claimant was last employed as a full-time scientist by Engility
(Employer) from October 4, 2004 until October 20, 2013, at a final annual salary
of $199,000. Claimant suffers from inclusion body myositis (IBM), an idiopathic
inflammatory disease resulting in progressive weakness of certain muscle groups,
for which there is no definitive treatment. Claimant’s medical condition limits his
ability to stand and walk; he uses a walker, cannot walk more than twenty feet, and
is prone to falling. Claimant took a medical leave of absence on October 20, 2013.
Claimant had open heart surgery on October 23, 2013 and continued on a medical
leave of absence.
            On October 27, 2014, Employer sent Claimant a letter advising that he
needed to provide a return-to-work notice by November 27, 2014. Claimant did not
comply with Employer’s instructions, and Employer terminated his employment.
            On February 6, 2015, the local service center determined that
Claimant had a necessitous and compelling reason for leaving his job and that
benefits were allowed under Section 402(b) of the Law, 43 P.S. §802(b). However,
the local service center also determined that Claimant failed to show that he was
able and available for suitable employment and denied benefits under Section
401(d)(1). Claimant appealed.
            A referee held a hearing on March 26, 2015. Jennifer Weigle,
Employer’s Human Resource Generalist, testified that Claimant left employment
for a medical reason. Weigle explained that according to Employer’s policy,
Claimant could remain on medical leave for up to one year. She stated that
Employer asked for but never received a return-to-work authorization from any of
Claimant’s doctors, and Claimant never asked to return to work with limitations or
accommodations. Weigle also stated that continuing work was available; however,


                                        2
she added that the type of work Claimant performed was sensitive in nature and
could not be performed at home. (Notes of Testimony (N.T.), March 26, 2015, at
4-5). Claimant did not attend the hearing.
              Based on the testimony offered at the hearing and the documents of
record, the referee determined that Claimant was not ineligible for benefits under
Section 402(b) of the Law but was ineligible for compensation under Section
401(d)(1).    Claimant appealed to the Board, which remanded the matter to a
referee to act as a hearing officer for the Board and accept testimony and evidence
on Claimant’s reason for nonappearance at the prior hearing and also on the merits.
On July 2, 2015, a second hearing was held in which Claimant, with counsel, and
Employer both participated by telephone. Claimant testified that he had made plans
to attend the first hearing but he was unable to navigate the stairs at his house that
day due to his IBM condition. (N.T., July 2, 2015, at 4-6). Claimant explained that
his IBM condition allowed him to walk slowly with the aid of a walker but that he
was prone to falling if he moved too fast and he could not walk more than ten to
twenty feet. (Id. at 6). Claimant said he believed that it was too late to participate
by telephone. (Id.).
              Regarding the merits, Claimant testified that he suffered from IBM
and was using a cane prior to October 2013, when he left his employment to have
open-heart surgery. (Id. at 6-7). He stated that he applied for short-term and long-
term disability benefits and that he intended to return to work after the disability
period. (Id. at 7). At the time of Claimant’s termination, he was still on disability
leave. (Id. at 10).
              Claimant testified that he generally worked for Employer at the Naval
Air Systems Command (NASC) in Patuxent River, Maryland, and that he never


                                          3
asked to work remotely. (Id. at 7-8). Claimant said that after he received
Employer’s letter about his impending termination, he contacted NASC and
learned that he would have to go through the NASC funding source process and
find a contract vehicle under which he could work from home. (Id. at 8). At the
time of his termination, he did not have a contract vehicle. (Id. at 9).
             Claimant stated that after his termination, he talked to a number of
people and another small company at the same NASC location, but a contract
vehicle had not been set up. Claimant believed that there was work that he could
do from his residence, but it would require him to obtain a naval marine computer
integration system, which he had not done. (Id. at 9).
             Weigle testified again at the second hearing. She stated that Claimant
never provided Employer with a return-to-work request as required under
Employer’s policy, nor did he ask about the possibility of working from home. (Id.
at 11).
             In its opinion and order of August 10, 2015, the Board found that
Claimant had good cause for his nonappearance at the first hearing; therefore, it
considered testimony from both hearings, as well as the other evidence of record.
The Board found that Claimant took a medical leave of absence from work due to
open heart surgery and deterioration of his muscle tone. The Board also found that
Employer terminated Claimant’s employment because Claimant was out of work
for a period of one year and did not provide Employer with a return-to-work
notice. The Board concluded that Claimant established necessitous and compelling
reasons for leaving his employment and was not ineligible for benefits under
Section 402(b) of the Law. However, the Board determined that Claimant was




                                           4
disqualified from receiving benefits under Section 401(d)(1) because he did not
credibly establish a realistic attachment to the job market.
              On appeal to this Court,2 Claimant argues that the Board erred in
determining that he was ineligible for benefits under Section 401(d)(1) because he
is able and available for suitable work.
              In order to be eligible for unemployment benefits under Section
401(d)(1), the claimant must show that he is able and available for suitable work.
Rohde v. Unemployment Compensation Board of Review, 28 A.3d 237, 243 (Pa.
Cmwlth. 2011). The claimant creates a rebuttable presumption of availability by
registering for unemployment compensation benefits. GTE Products Corporation
v. Unemployment Compensation Board of Review, 596 A.2d 1172, 1173 (Pa.
Cmwlth. 1991). The presumption is rebuttable by evidence that the claimant’s
disability or medical condition limits the type of work he is able to accept.
Scardina v. Unemployment Compensation Board of Review, 537 A.2d 388, 390
(Pa. Cmwlth. 1988). If the employer rebuts the presumption then the burden shifts
back to the claimant to prove that he is able to do some type of work and that he
has a reasonable opportunity of obtaining such work. Molnar v. Unemployment
Compensation Board of Review, 397 A.2d 869, 870 (Pa. Cmwlth. 1979). “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.”
Harwood v. Unemployment Compensation Board of Review, 531 A.2d 823, 826
(Pa. Cmwlth. 1987).

       2
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Schneider v. Unemployment Compensation Board of Review, 12 A.3d 754,
756 n.1 (Pa. Cmwlth. 2010).


                                              5
             In Rohde, the claimant underwent cardiac catheterization and was
required to attend cardiac rehabilitation four or five days a week. The employer
would not allow the claimant to modify his schedule to attend therapy and the
claimant quit. The claimant continued working a part-time job and obtained a new
job approximately two weeks later. The Board determined that the claimant was
ineligible for benefits under Section 401(d)(1), because his medical appointments
restricted the hours he was available to work. On appeal, we reversed and held that
the claimant’s actual employment was sufficient evidence that he was both able
and available for work for purposes of Section 401(d)(1) of the Law. Rohde, 28
A.3d at 243-245.
             In Molnar, the claimant suffered from severe allergies to dust. His
condition worsened to the point that his doctor advised him to leave his
employment because of dust exposure. The employer granted the claimant a one
year leave of absence. Because the claimant’s condition did not improve to the
point that he could return to work, the employer terminated him. When asked
whether any jobs existed that he could perform with his limitations, the claimant
testified that he might be qualified to be a drafter or office worker, but he offered
no evidence that such jobs were available. We affirmed the Board’s determination
that the claimant was ineligible for benefits under Section 401(d)(1) because the
claimant failed to produce evidence that he was able to do some type of work and
that there was a reasonable opportunity for securing such work. Molnar, 397 A.2d
at 871.
             Here, Claimant established the presumption of availability by
registering for unemployment compensation benefits. The presumption was
rebutted by the evidence of his medical condition causing a deterioration of his


                                         6
muscle tone and restricting his mobility to the point that he must use a walker,
cannot walk more than ten to twenty feet, and is prone to falling, allowing him to
only work from home. This limitation, while not disqualifying in itself, was
sufficient to rebut the presumption of availability. Rohde, 28 A.3d at 243; Molnar,
397 A.2d at 870. Therefore, the burden shifted back to Claimant to prove that he is
able to work and available for suitable work.
             We have previously recognized that:

             If the claimant, though disabled, is able to do some type
             of work and there is a reasonable opportunity for
             securing such work in the vicinity of his residence, he is
             attached to the labor force. There is no requirement that
             the claimant be able to do the same work or type of work
             as he was formerly; it is sufficient if he is able to do some
             kind of work and if there is reasonable opportunity for
             securing such work.

Hower and Son v. Unemployment Compensation Board of Review, 509 A.2d 1383,
1386 (Pa. Cmwlth. 1986) (quoting Patsy v. Unemployment Compensation Board of
Review, 345 A.2d 785, 787 (Pa. Cmwlth. 1975)).
             Unfortunately, unlike the employee in Rohde, Claimant produced no
evidence that he was able to do some type of work within his restrictions or that he
had a reasonable opportunity of obtaining such work. Although Claimant believed
that there was work that he could do from his residence and attempted in good faith
to identify such work, he was unable to do so. Thus, the Board properly determined
that Claimant did not establish a realistic attachment to the job market and is
ineligible for benefits under Section 401(d)(1) of the Law.




                                          7
Accordingly, we affirm the Board’s order.




                        MICHAEL H. WOJCIK, Judge




                           8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth J. Petri,                        :
                                         : No. 1659 C.D. 2015
                         Petitioner      :
                                         :
                    v.                   :
                                         :
Unemployment Compensation                :
Board of Review,                         :
                                         :
                         Respondent      :



                                      ORDER


             AND NOW, this 20th day of April, 2016, the Unemployment
Compensation Board of Review’s order dated August 10, 2015 is affirmed.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
