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DAVID R. CHAPMAN v. COMMONWEALTH PENNSYLVANIA (05/08/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 8, 1980.

DAVID R. CHAPMAN, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of David R. Chapman, No. B-162060.

COUNSEL

David R. Chapman, petitioner, for himself.

Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 51 Pa. Commw. Page 255]

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. ยง 801(d), provides that compensation shall be payable to an employe who becomes unemployed and who is "able to work and available for suitable work." The Unemployment Compensation Board of Review held that David R. Chapman, Jr. was ineligible for compensation because he was not able to work and not available for suitable work. We must affirm that decision.

Mr. Chapman was employed as a meat inspector by the United States Department of Agriculture. His work was in Pittsburgh but on weekends he regularly went to Harrisonburg, Virginia, which he considered to be his home. His last day of work was June 24, 1977, a Friday. After work he went for the weekend to Harrisonburg, became ill, and obtained medical attention and treatment. It was eventually ascertained that he suffered from chronic obstructive pulmonary disease, he was hospitalized in July 1977 and was never able to resume his employment. He was on sick leave until October 1977 and thereafter on leave without pay. In February 1978 he applied to the Federal Government for disability pension.

Mr. Chapman's treating physician certified to the Bureau of Employment Security that Mr. Chapman was not able to accept gainful employment as of March 12, 1978. A month later the doctor certified that Mr. Chapman had severe chronic obstructive pulmonary disease, that he was disabled for gainful employment in his present occupation but that he, the doctor, would not object to Mr. Chapman's engaging, on a trial basis, in a sedentary, clean air endeavor of some kind. At the referee's hearing conducted in May 1978 Mr. Chapman testified that he was not able to do the work of a meat inspector but that he could be

[ 51 Pa. Commw. Page 256]

    possibly trained to do light work in a clean environment. As noted, the Board of Review concluded that Mr. Chapman was ineligible for benefits.

In the very similar case of Rodrigo v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 593, 595, 393 A.2d 1311, 1312 (1978), Judge MacPhail wrote the following paragraphs which are altogether applicable here:

Clearly, the referee and the Board were correct in denying benefits to the Claimant. Before one may qualify for unemployment compensation benefits, he must prove that he is able to work and available for suitable work. Koba v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 264, 370 A.2d 815 (1977). Generally, a physical condition which justifies an employee leaving his employment will also prevent that employee from working at all. Molton Unemployment Compensation Case, 194 Pa. Superior Ct. 190, 166 A.2d 103 (1960). An employee terminating his employment for a necessitous and compelling reason is nonetheless ineligible for benefits if he is unavailable for suitable work. Baker v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 503, 336 A.2d 671 (1975). As this Court has observed in the past, if an applicant for unemployment compensation benefits who is physically unavailable for work is not thereby disqualified from benefits, unemployment compensation will be transformed into health insurance. Unemployment Compensation Board of Review v. Smith, 25 Pa. Commonwealth Ct. 471, 360 A.2d 833 (1976).

Since the referee and Bureau have found as a fact that the Claimant was not physically capable of engaging in gainful employment and

[ 51 Pa. Commw. Page 257]

    that finding is based upon substantial evidence and is consistent with previous rulings of this Court as cited above, we are compelled to affirm the Board's order.

Order affirmed.

Order

And Now, this 8th day of May, 1980, the order of the Unemployment Compensation Board of Review entered July 31, 1978 is affirmed.

Disposition

Affirmed.

19800508

© 1998 VersusLaw Inc.



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