Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert N. Molnar, No. B-139833-B.
Catherine A. Davis, with her Paul Osborne, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Crumlish, Jr.
[ 40 Pa. Commw. Page 519]
Robert N. Molnar (claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) that he is not able and available for
[ 40 Pa. Commw. Page 520]
suitable work and therefore is ineligible for benefits pursuant to Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d). We affirm.
Claimant suffers from allergies which are aggravated by exposure to dust, smoke, fumes, and particulate matter. His condition became so severe that his physician advised him to leave his employment with the United States Postal Service, where he was exposed to dust, until his allergies could be stabilized. On April 20, 1976, claimant was granted a one-year leave of absence by the Postal Service because of his allergies. If, at the end of that period, claimant's condition had not improved sufficiently to allow him to return to work, his employment with the Postal Service would be terminated. In the interim, claimant's physician advised him not to accept any other position which involved exposure to dust, smoke, fumes, or particulate matter.
Claimant's application for unemployment compensation for the period October 2, 1976 through October 23, 1976 was denied by the Bureau of Employment Security on the basis of Section 401(d). After two hearings, a referee and the Board agreed, reasoning that, because of his physical condition and his leave-of-absence status, claimant was not genuinely and realistically attached to the labor force.
Claimant had the burden to establish that he is able and available for suitable work as required by Section 401(d). Koba v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 264, 370 A.2d 815 (1977). To meet this burden, claimant relies almost exclusively upon the presumption that one who registers for work with the Bureau of Employment Security meets the requirements of Section 401(d). See, e.g., Baker v. Unemployment Compensation Board of Review,
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Pa. Commonwealth Ct. 503, 507, 336 A.2d 671, ...