          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Warren T. McCall,                          :
                           Petitioner      :
                                           :
             v.                            :   No. 197 C.D. 2019
                                           :   Submitted: September 13, 2019
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                           FILED: December 5, 2019


             Warren T. McCall (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board). The Board affirmed a
decision of the Unemployment Compensation Referee (Referee), denying Claimant
unemployment compensation benefits pursuant to Section 401(d)(1) of the
Unemployment Compensation Law (Law).1 As set forth below, we affirm.
             Claimant applied for unemployment compensation benefits on
October 14, 2018, while on medical leave from his position as a Mental Health
Technician with Friends Hospital-Universal Health (Employer). (Certified Record


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(d)(1).
(C.R.), Item No. 1 at 1; Item No. 2 at 1-2.) The UC Service Center (Service Center)
determined that Claimant was not ineligible for unemployment compensation
benefits under Section 402(b) of the Law,2 relating to voluntarily quitting without
cause of a necessitous and compelling nature, but ultimately determined that
Claimant was ineligible for unemployment compensation benefits under
Section 401(d)(1) of the Law, relating to being able and available for work. (C.R.,
Item No. 6 at 1.) Claimant appealed the Service Center’s determination. (C.R., Item
No. 7.) A Referee conducted a hearing at which time Stephanie Mellott (Mellott),
Employer’s Human Resources Generalist, and Claimant testified. (C.R., Item
No. 10 at 1.)
                 Mellott testified that Claimant last worked for Employer on
October 10, 2018, as a full-time employee. (Id. at 3.) Claimant did not voluntarily
quit nor did Employer discharge him. (Id. at 4.) Instead, Claimant took an approved
medical leave of absence in order to have leg surgery that started on
October 11, 2018, with a tentative end date of January 27, 2019. (Id.) Employer did
not receive any notification from Claimant or Claimant’s doctor as to whether
Claimant was “able and available for some work.” (Id.) Light-duty work would not
have been available for Claimant had Employer received notification from either
Claimant or Claimant’s doctor that he was medically fit to be “able and available for
some work,” because light-duty work is for workers’ compensation cases only. (Id.)
Employer considered Claimant still to be employed as a full-time Mental Health
Technician. (Id. at 3.)




       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).

                                               2
             Claimant testified that he had surgery on October 24, 2018. (Id. at 5.)
On January 27, 2019, Claimant received a letter from his doctor that he could
possibly return to work in early February 2019. (Id.) Claimant’s doctor informed
him that he would be “able to do work using [his] hands and able to get to work.”
(Id.) Claimant admitted that he had not had a conversation with Employer regarding
his ability to “return to work and perform limited duties.” (Id.) Furthermore,
Claimant’s doctor had not specifically told Claimant that he was “able to return to
work and perform limited duties,” and Claimant had not asked his doctor this
question. (Id.)
             Following the hearing, the Referee issued a decision concluding that
Claimant was ineligible for unemployment compensation benefits. (C.R., Item
No. 11 at 1-3.) The Referee issued the following findings of fact:
             1.   The Claimant was employed as a Mental Health
             Technician from September 22, 2014[,] until
             October 10, 2018; at the time of separation, he was
             working full-time . . . .

             2.   On October 11, 2018, the Claimant began an
             Employer-approved leave of absence for medical reasons.

             3.    Documentation submitted by the Claimant to the
             Employer in support of his request for a leave of absence
             for medical reasons indicated that he would be unavailable
             for work from October 11, 2018[,] through
             January 27, 2019.

             4.    The      Claimant      underwent       surgery   on
             October 24, 2018; as of the date of the hearing, the
             Claimant’s physician had not advised the Claimant that he
             could return to work and[,] if so, whether his ability to
             work was subject to restrictions or limitations.



                                         3
                5.     The Claimant filed an application for benefits
                effective October 14, 2018.

(Id. at 1-2.) The Referee offered the following reasoning:
                [T]he Claimant has demonstrated that [he] meets all three
                prongs of the three-prong test set forth by the [a]ppellate
                [c]ourts to establish necessitous and compelling reasons
                for leaving a job due to health conditions for the period at
                issue in this appeal i.e., the period beginning with the
                waiting week ending October 20, 2018. As a result,
                benefits cannot be denied to the Claimant under
                Section 402(b) of the Law.
                      ....
                      Based on the testimony received at the hearing, the
                Referee concludes that the Claimant was not able and
                available for work for the waiting week ending
                October 20, 2018; therefore, benefits must be denied
                under Section 401(d)(1) of the Law.
                      A denial of benefits under Section 401(d)(1) [of the
                Law] is subject to review on a week-to-week basis and a
                denial of benefits for a specific claim week(s) does not
                prejudice a claimant’s eligibility for any future week.
                      The Claimant is free to notify the Employer and the
                Service Center and to supply supporting documentation
                when released to seek suitable employment by his
                physician.

(Id. at 2-3.)
                Claimant appealed the Referee’s decision to the Board. (C.R., Item
No. 12.) The Board, adopting and incorporating the Referee’s findings of fact and
conclusions of law, concluded that the Referee properly determined that Claimant
was not eligible for unemployment compensation benefits pursuant to
Section 401(d)(1) of the Law. (C.R., Item No. 14.) The Board noted that “[w]hether
a claimant is able and available for work is a week-to-week test. The claimant should


                                             4
contact his local . . . Service Center and file a new application for benefits if and
when he becomes ‘able and available’ for work.” (Id.)
              On appeal,3 Claimant argues that the Board erred when it found that he
was not able and available for work. Claimant also argues that the Board erred in
its determination that he was ineligible for unemployment compensation benefits
under Section 401(d)(1) of the Law. Claimant essentially argues that he was able
and available for work, because, as shown from his testimony before the Referee, he
was able to perform limited work with his hands. Claimant contends that the Law
only requires a showing that he is able and available to perform some kind of work,
not that he was able to perform his normal position with Employer. The Board
argues that it did not err in denying Claimant unemployment compensation benefits,
because Claimant had failed to offer any evidence as to what types of jobs he could
actually and medically perform with his hands, that such jobs were reasonably
available to him, and that he was actively seeking out such jobs. We agree with the
Board.
              Pursuant to Section 401(d)(1) of the Law, a claimant is eligible for
unemployment compensation benefits when he is, or becomes, unemployed and is
able and available for suitable work. It is well established that a claimant enjoys a
rebuttable presumption that he is “able and available for work” when he applies for
unemployment compensation benefits. GTE Prods. Corp. v. Unemployment Comp.
Bd. of Review, 596 A.2d 1172, 1173 (Pa. Cmwlth. 1991), appeal denied,
607 A.2d 257 (Pa. 1992). To effectively rebut this presumption, an employer must
show evidence “that a claimant’s physical condition limits the type of work he is

       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               5
available to accept . . . or that he has voluntarily placed other restrictions on the type
of job he is willing to accept.” Molnar v. Unemployment Comp. Bd. of Review,
397 A.2d 869, 870 (Pa. Cmwlth. 1979). After the presumption is rebutted, the
burden of proof shifts back to the claimant to prove affirmatively that he was “able
to do some type of work and that there was a reasonable opportunity for securing
such work.” Id.; see also Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d
600, 603 (Pa. Cmwlth. 2006).         A claimant successfully proves that he has a
“reasonable opportunity” to obtain work that he is able to perform when he provides
evidence, on the record, that shows that such jobs exist or by showing the reasonable
possibility that he could secure any of the offered jobs. Pizzo v. Unemployment
Comp. Bd. of Review, 424 A.2d 1021, 1022 (Pa. Cmwlth. 1981).
             Here, Employer effectively rebutted the presumption of Claimant’s
ability and availability for work. At the hearing before the Referee, Mellott testified
that Claimant took a medical leave of absence between October 11, 2018, and
January 27, 2019, to have surgery. (C.R., Item No. 10 at 4.) Employer did not
receive any notification from Claimant or Claimant’s doctor that he had been cleared
to return to work in any capacity. (Id.) In addition, when asked on his Internet Initial
Claims form whether he was “able to work,” Claimant responded that he was not
able to work because “[w]alking aides (ex: crutches and canes) are not allowed . . .
[in the hospital], including for staff.” (C.R., Item No. 2 at 4.) On the same form,
Claimant also responded to the question “[a]re you available for work” that he was
not available for work because his doctor had informed him that his surgery would
require “extended healing time.”         (Id.)   Mellott’s testimony and Claimant’s
responses to the Internet Initial Claims form effectively rebutted the presumption
that Claimant was able and available for work. As a result, the burden shifted to


                                            6
Claimant to prove that (1) he was able to do some work, and (2) he had a reasonable
opportunity to obtain such work.
             In this case, Claimant essentially argues that he met this burden by
testifying before the Referee that he was able to do work with his hands and was
able to get to work. The Board, instead, argues that Claimant failed to meet his
burden by failing to offer any evidence as to what types of jobs he could actually
perform in his condition with his hands, that such jobs were reasonably available,
and that he was actively seeking such work. We agree with the Board. While it is
true that the Law requires that a claimant must show he is able and available for
some type of work, the Law also requires that the claimant must show (1) what type
of work he is capable of doing and (2) that there is a reasonable possibility that he
would be able to obtain such a position.
             Claimant relies upon our decisions in Pennsylvania Electric Co. v.
Unemployment Compensation Board of Review, 458 A.2d 626 (Pa. Cmwlth. 1983),
and Harwood v. Unemployment Compensation Board of Review, 531 A.2d 823 (Pa.
Cmwlth. 1987). These cases are distinguishable. In Pennsylvania Electric Co., the
Court held that the claimant was able and available for work because the claimant
had testified that “she [was] capable of performing any work indoors which does not
require lifting,” had interviewed with job counselors, and had researched job
availabilities in the local newspaper. Pa. Elec. Co., 458 A.2d at 628. The claimant
in Pennsylvania Electric Co., therefore, not only provided evidence that she was able
and available for work, but she also provided testimony detailing what type of work
she could perform in her medical condition (any work indoors that did not require
lifting) and provided testimony that she had the reasonable possibility of obtaining
such a position based off of her job interviews and research. Id. In Harwood, the


                                           7
Court held that the claimant was able and available for work because the claimant
was available for any and all work except for a “case worker” position, and as he
actively sought employment with his employer and elsewhere. Harwood, 531 A.2d
at 826. The claimant in Harwood also proved both that he was able and available
for work and that there were jobs that he could do (in this case, any job other than a
“case worker”) and that he had the reasonable possibility to obtain such work (as he
was actively applying for other positions). Additionally, the claimant’s doctor had
released the claimant to perform any job other than as a “case worker.” Id.
             Here, in contrast to both of these cases, Claimant provided only his own
testimony that he was able to work with his hands and was able to get back to work.
(C.R., Item No. 10 at 1-2, 4-6.) Claimant failed to provide any evidence that would
show what type of work he would be able to perform safely with his hands in his
medical condition and also failed to list a single job that he could do. Merely stating
that a claimant is able and available for work is not nearly enough and is certainly
not the end of the inquiry as required by the Law. A claimant must also show that
there are jobs available that he would be able to perform and that these same jobs
are reasonably available to him.
             Accordingly, we affirm the order of the Board.




                                          P. KEVIN BROBSON, Judge




                                          8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Warren T. McCall,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 197 C.D. 2019
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 5th day of December, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
