Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Rena Hamelers, No. B-155117.
Nancy L. Ford, for appellant.
Richard Wagner, Chief Counsel, with him Michael D. Klein, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 48 Pa. Commw. Page 122]
Rena Hamelers has appealed from a decision of the Unemployment Compensation Board of Review (Board) that she was ineligible for unemployment compensation benefits on the ground that she had voluntarily accepted a leave of absence and thus was not thereafter available for suitable work. 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) requires as a condition
[ 48 Pa. Commw. Page 123]
of eligibility that workers be "able to work and available for suitable work."
Ms. Hamelers was employed for five years by Sears, Roebuck and Company (Sears) as a warehouse worker and forklift operator at one of its distribution centers. She became pregnant and in July, 1977, informed Sears that her doctor had ordered her to refrain from any further heavy work. Ms. Hamelers requested that she be given lighter work. Sears, unable to provide Ms. Hamelers with work meeting her capabilities, placed her on leave of absence until January, 1978. At the referee's hearing, Ms. Hamelers testified that she did not request a leave of absence; that she had wanted to continue to work for Sears doing lighter work; that, after being placed upon leave of absence, she was able and available for suitable work; and that if she found other work she would not return to Sears following the birth of her child but would continue in her new employment. This testimony was not contradicted.
The referee and the Board concluded that Ms. Hamelers was ineligible for unemployment compensation benefits solely because, by accepting leave of absence status, she was not "available for suitable work." We believe this was error. In circumstances materially identical to those of this case, we held that the pregnant woman's acceptance of a leave of absence was not voluntary and that having been involuntarily placed on leave of absence she was eligible for benefits. Defeo v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 161, 392 A.2d 337 (1978).
In Defeo, the Board had made no finding of fact concerning whether the claimant's leave of absence was voluntary or involuntary. Here, the referee and the Board each found as fact that Ms. Hamelers voluntarily accepted a leave of absence. The sole evidence
[ 48 Pa. Commw. Page 124]
relied upon by the referee and the Board was Ms. Hamelers' statement when first applying for benefits that her "[d]octor advised me to take a maternity leave as of the middle of July due to the heavy lifting in my job. I asked for light duty job, was told there were none." In our view this was not substantial evidence -- that is, more than a scintilla -- that Ms. Hamelers voluntarily accepted a leave of absence status. The only direct evidence on this issue was Ms. Hamelers' testimony clearly ...