       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PORTIA GARRETT,                             :
                                            :
                    Appellant,              :        K17A-01-002 JJC
                                            :        In and For Kent County
                           v.               :
                                            :
UNEMPLOYMENT INSURANCE                      :
APPEALS BOARD AND                           :
AMAZON.COM DEDC, INC.                       :
                                            :
                    Appellees.              :
                                            :

                                        ORDER

                                Submitted: June 12, 2017
                                 Decided: June 22, 2017

   On this 22nd day of June 2017, having considered Appellant Portia Garrett’s
(hereinafter “Ms. Garrett’s”) appeal, it appears that:
   1. Ms. Garrett appeals the Unemployment Insurance Appeal Board’s
(hereinafter “the Board’s”) decision that she is ineligible to receive unemployment
benefits.   Since this matter involves an appeal of an administrative agency’s
decision, the Court is confined to a review of the facts contained in the record, and
it is those facts that are referenced herein.
   2. Ms. Garrett worked for Amazon.com DEDC, Inc. (hereinafter “Amazon”).
While on the job, Ms. Garrett injured herself through no fault of her own. Due to
this injury, Amazon placed her on approved medical leave from December 31,
2015 to May 6, 2016. During the time that Ms. Garrett was on approved medical
leave, Amazon continued to provide her with a source of income through its
disability insurance. After her approved medical leave ended, her doctor placed
her on light duty, which meant Ms. Garrett’s ability to work remained restricted.
   3. Despite having a source of income through Amazon, Ms. Garrett filed for
unemployment benefits after failing to receive workers’ compensation benefits.
On September 28, 2016, a Claims Deputy at the Division of Unemployment
Insurance denied Ms. Garrett’s claim finding that she failed to prove that Amazon
had terminated her employment. The Claims Deputy found that Ms. Garrett was
not an unemployed person and therefore was ineligible to receive unemployment
benefits. Ms. Garrett subsequently filed a notice of appeal on October 6, 2016.
Ms. Garrett indicated that she filed the appeal because Amazon informed her that it
terminated her employment due to her light duty restriction. The Division of
Unemployment Insurance then scheduled an appeal hearing before an Appeals
Referee.
   4. At the hearing, Amazon did not appear. However, the company provided a
document claiming that it had not fired Ms. Garrett.         Instead, the company
maintained that she had failed to return from her approved medical leave. That
document also stated that Amazon still considered Ms. Garrett an employee. Ms.
Garrett was unable to present the referee with documentation that Amazon
terminated her employment. Accordingly, the referee found that Ms. Garrett was
not an unemployed individual, and was therefore not entitled to unemployment
benefits. Ms. Garrett then filed an appeal of this decision to the Board. The Board
scheduled a hearing for December 7, 2016.
   5. At the hearing, the evidence the Board considered included documentation
provided by Ms. Garrett from her doctor restricting her workload to light duty.
The Board also considered Ms. Garrett’s testimony that Amazon was unable to
provide her with a position that qualified as light duty work. After the hearing, the
Board modified the referee’s decision. Namely, the Board found that Ms. Garrett
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did not qualify as an unemployed person. Despite this modification, the Board
affirmed the referee’s decision holding that Ms. Garrett is not entitled to
unemployment benefits. In so finding, the Board determined that Ms. Garrett’s
doctor had not medically cleared her to return to work without restrictions, and
therefore, she remained unable to perform her job requirements.                        The Board
determined that since Ms. Garrett is medically unable to work, she is not entitled to
unemployment benefits. She then appealed the Board’s decision to the Superior
Court.
      6. Ms. Garrett is entitled to appeal the Board’s decision to this Court pursuant
to Section 3323(a) of Title 19 of the Delaware Code. When reviewing an appeal
from an administrative board’s final order, this Court is confined to a
determination of whether the Board’s decision is supported by substantial evidence
and is free from legal error.1            Substantial evidence equates to “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”2
Substantial evidence is “more than a scintilla but less than a preponderance.” 3 On
review, “the court is not authorized to make its own factual findings, assess
credibility of witnesses or weigh the evidence.” 4 Furthermore, “[i]n reviewing the
record for substantial evidence, the Court will consider the record in the light most
favorable to the party prevailing below.”5

1
 E.g., Unemployment Ins. Appeal Bd. of the Dept. of Labor v. Duncan, 337 A.2d 308, 308 (Del.
1975); Thompson v. Christiana Care Health Sys., 25 A.3d 778, 781–82 (Del. 2011).
2
 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)).
3
    Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).
4
    Sokoloff v. Bd. Of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. Ct. 2010).
5
 Pochvatilla v. US Postal Serv., 1997 WL 524062, at *2 (Del. Super. Ct. 1997); see also
Thompson, 25 A.3d at 782.

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      7. The burden is on Ms. Garrett to establish that she is entitled to
unemployment benefits.6 Accordingly, she is required to show that she “is able to
work and is available for work and is actively seeking work.” 7 Delaware courts
incorporate into the term “available to work” both the “ability to work and
qualification through skill, training or experience for a particular occupation,
commonly expressed in terms of an identifiable labor market.” 8 However, when a
person is unable to work due to a medical or physical disability, that individual is
not eligible to receive unemployment benefits until a doctor clears that person to
return to work. 9 Delaware courts consistently note that unemployment benefits are
not health insurance and accordingly are “not available to those who are unable to
work due to illness.”10
      8. Here, Ms. Garrett presented the Board with a doctor’s certificate clearing her
to return to work for eight hours a day but on light duty restriction. Ms. Garrett
also presented evidence to the Board that Amazon was unable to accommodate her
light duty restriction.
      9. Delaware courts have previously held that an employee’s ability to work at
restricted duty that his or her employer cannot accommodate is insufficient to
establish that an individual is available for work and thus entitled to unemployment



6
    Petty v. Univ. of Del., 450 A.2d 392, 395 (Del. 1982).
7
    19 Del. C. § 3315(3).
8
  E.g., Petty, 450 A.2d at 395; Drewry v. Air Liquide-Medal, LLC, 2011 WL 6400550, at *2
(Del. Super. Ct. Dec. 13, 2011); Briddell v. Dart First State, 2002 WL 4499437, at *1 (Del.
Super. Ct. Mar. 28, 2002).
9
 19 Del. C. § 3314(8); see also Drewry, 2011 WL 6400550, at *2 (stating that those individuals
unable to work due to a physical disability are not entitled to unemployment benefits).
10
     Morris v. Unemployment Ins. Appeal Bd., 340 A.2d 162, 163 (Del. Super. Ct. 1975).

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benefits.11 Given the doctor’s note stating that Ms. Garrett is on light restriction
for work and Amazon’s representation that it is unable to accommodate that
restriction, there is sufficient evidence to support the Board’s decision that Ms.
Garrett is not available to work at this time. The Board’s decision is free of legal
error and supported by substantial evidence, and therefore, pursuant to 19 Del. C. §
3315(3), Ms. Garrett is not entitled to unemployment benefits. As the Board
determined, once Ms. Garrett receives a doctor’s certificate clearing her to return
to work without restrictions, this disqualification will no longer remain in effect.
      For the reasons set forth above, the Court affirms the decision of the Board.
      IT IS SO ORDERED.

                                                                  /s/Jeffrey J Clark
                                                                        Judge




11
     E.g., Drewry, 2011 WL 6400550, at *2; Briddell, 2002 WL 4499437, at *3.

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