Categories
07. Eligibility - Able & Available

Taylor v United States Postal Service – 7.27

Taylor v United States Postal Service
Digest no. 7.27

Section 28(1)(c)

Cite as: Taylor v US Postal Service, 163 Mich App 77 (1987).

Appeal pending: No
Claimant: Geneva Taylor
Employer: United States Postal Service
Docket no.: UCF84 13552 98942W
Date of decision:

View/download the full decision

COURT OF APPEALS HOLDING: A claimant must establish she is physically capable of performing work of a type for which she has received wages in the past. Claimant’s unsubstantiated assertion she could perform work permitted by medical restrictions imposed by her physician is insufficient to establish that she is able to work.

FACTS: Claimant worked as a postal carrier until medical restrictions due to pregnancy made her unable to meet the physical demands of that employment. Claimant worked previously as a salesclerk and asserted that she could perform sales work. However, she was restricted from lifting, pushing or pulling anything over 20-25 pounds, sitting more than 2 hours, standing more than 2 hours, excessive bending, stooping or stretching and could perform inside work only. Claimant acknowledged that salespeople usually stand on their feet all day, but opined she could sit or stand.

DECISION: Claimant is not eligible for benefits because she is not able to perform suitable full time work.

RATIONALE: “In this case, it was factually determined that plaintiff was unable to do the work for which she had previously received wages, including both postal-related employment or any type of sales related employment, because of the restrictions imposed by her physician.”

SECONDARY ISSUE: Claimant asserted on appeal that the Referee did not satisfy his duty to assist an unrepresented party. Citing Ackerberg v Grant Community Hospital, 138 Mich App 295 (1984) the Court of Appeals stated: “the failure to raise an issue to the Board of Review precludes raising the issue on review before this court. …as it has been waived.”

Digest Author: Board of Review (original digest here)
Digest Updated:6/91

Categories
07. Eligibility - Able & Available

McKentry v MESC – 7.28

McKentry v MESC
Digest no. 7.28

Section 28(1)(c)

Cite as: McKentry v MESC, 99 Mich App 277 (1980).

Appeal pending: No
Claimant: Bessie McKentry, et al.
Employer: Muskegon Area Intermediate School District
Docket no.: 43884
Date of decision: August 11, 1980

View/download the full decision

COURT OF APPEALS HOLDING: “A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that ‘he is able and available to perform full-time work for which has previously received wages.'”

FACTS: The claimant, a teacher aide, was treated for knee trouble.

“[P]laintiff testified that she could not return to work for defendant school district because she could not stand on her feet all day. However, she also testified that there was work which she had performed in the past which she could still do, such as working for the telephone company or for Misco Corporation.”

DECISION: The claimant is eligible for benefits.

RATIONALE: “The lower court and the administrative agency focused on the fact that the plaintiff could not perform the job she last held with defendant school district in determining that plaintiff was not able and available to perform full-time work. A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that ‘he is able and available to perform full-time work for which he has previously received wages.'”

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90

Categories
20. Miscellaneous

Henry v Ford Motor Co – 20.01

Henry v Ford Motor Co
Digest no. 20.01

Section 28(1)(c)

Cite as: Henry v Ford Motor Co, 291 Mich 535 (1939).

Appeal pending: No
Claimant: Lee Henry
Employer: Ford Motor Company
Docket no.:
Date of decision: December 19, 1939

View/download the full document

SUPREME COURT HOLDING: A finding of disability for purposes of worker’s compensation does not necessarily mean a claimant is disabled and ineligible for unemployment insurance under Section 28(1)(c).

FACTS: Claimant suffered a work related injury. He filed for and received worker’s compensation. After some time he returned but could only perform favored work because of a restriction associated with the injury. Ultimately he was laid off and filed for unemployment benefits.

The employer contested the claimant’s eligibility. It asserted that because the claimant had been found disabled by the worker’s compensation board he couldn’t be fully able and available and had to be found ineligible pursuant to Section 28(1)(c) of the Employment Security Act.

DECISION: A finding that an employee is totally disabled so far as returning to pre-injury work is not necessarily inconsistent with a finding that he is able to, and is available for, work within his restrictions.

RATIONALE: An employee permanently disabled to continue the work that he was engaged in when the accident occurred may nevertheless be able to do some light work of a different nature than that in which he was previously engaged.

Digest Author:  Board of Review (original digest here)
Digest Updated: 12/91