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GEORGE J. PIZZO v. COMMONWEALTH PENNSYLVANIA (02/03/81)

decided: February 3, 1981.

GEORGE J. PIZZO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of George J. Pizzo, No. B-167821.

COUNSEL

James J. DeMarco, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 56 Pa. Commw. Page 432]

George J. Pizzo (claimant) appeals a decision of the Unemployment Compensation Board of Review affirming a referee's denial of benefits to him under Section 401(d) of the Unemployment Compensation Law (Act).*fn1

Claimant suffers from fluid on the knees, a condition which is aggravated by prolonged periods of standing and which causes him pain. On April 12, 1978, because of his worsening condition, claimant voluntarily terminated his employment with Virnelson's Bakery, where he had been employed as a

[ 56 Pa. Commw. Page 433]

    mixer since 1956. Claimant's application for unemployment compensation benefits showed an effective date of June 18, 1978. Accompanying the application was a certification from claimant's treating physician which indicated that claimant was unable to accept gainful employment as of June 18, 1978. On the basis of that certificate, the Bureau of Employment Security issued its determination that claimant was ineligible for benefits because he was not able and available for suitable work as required by Section 401(d) of the Act. The referee affirmed that determination and concluded that the statement by claimant's physician medically certified the claimant as being unable and unavailable for employment. Following the Board's affirmance of the referee's decision, this appeal followed:

In this case it is clear that the doctor's certification formed the central basis for the denial of benefits to claimant. It is the well settled law, that 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).

Claimant contends that the mere fact that he registered for work with the Bureau raises a presumption of availability. While this is true, this presumption is rebuttable by evidence that a claimant's physical condition limits the type of work he is available to accept. Baker v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 503, 336 A.2d 671 (1975).

The instant claimant is unable to stand for long periods as it causes a painful buildup of fluid in his knees. Moreover, his treating physician has medically certified that claimant was unavailable for work as of the effective date of his application ...


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