07. Eligibility - Able & Available

Parker v. TNT Logistics North America, Inc. – 7.36

Parker v. TNT Logistics North America, Inc.
Digest No. 7.36

Section 421.28(1)(c)

Cite as: Parker v TNT Logistics North America, Inc, unpublished opinion of the Wayne County Circuit Court, issued December 27, 2007 (Docket No. 07-717651-AE).

Appeal pending: No
Claimant: Karen F. Parker
Employer: TNT Logistics North America, Inc.
Date of decision: December 27, 2007

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HOLDING: A claimant is not ineligible for benefits under Section 421.28(1)(c) if she leaves her job due to physical impairment if she seeks job placement help to return to the work force.

FACTS: Claimant left her factory job due to arthritis and other physical impairment. The UIA deemed her ineligible for benefits under Section 421.28(1)(c), finding her unable to perform suitable full-time work. At an ALJ hearing, Claimant admitted her condition likely precluded her from returning to her previous kinds of employment. But, she testified she had sought job placement help with the Michigan Rehabilitative Services to return to the work force.

The ALJ and Board of Review both affirmed the UIA’s determination of ineligibility.

DECISION: The Circuit Court reversed Board of Review. Claimant is not ineligible for benefits.

RATIONALE: Following McKentry v MESC, 99 Mich App 277 (1980), the court noted that a “claimant is not ineligible for benefits under the ability provision when seeking a different type of employment than his or her last job.” And, under Bolles v MESC, 361 Mich 378 (1960), “registering for and seeking work were indicia that a claimant was able and available for work, and therefore remained attached to the labor market.”

Here, Claimant had previously performed clerical work and was seeking further job training to potentially return to such employment. Therefore, Claimant maintained a sufficient connection to the workforce to preserve benefits eligibility.

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: 10/31/2017

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:

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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

07. Eligibility - Able & Available

Bateman v Jackson Industrial Manufacturing Co – 7.17

Bateman v Jackson Industrial Manufacturing Co
Digest no. 7.17

Section 28(1)(c)

Cite as: Bateman v Jackson Industrial Manufacturing Co, unpublished opinion of the Kent County Circuit Court, issued May 5, 1980 (Docket No. 80 29462 AE).

Appeal pending: No
Claimant: Robert L. Bateman
Employer: Jackson Industrial Manufacturing Company
Docket no.: B77 10805 RO2 62489
Date of decision: May 5, 1980

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CIRCUIT COURT HOLDING: (1) Where a medical restriction limits an individual to seated work, which the claimant has never performed for wages, the claimant is not able and available for work. (2) Lack of counsel is not good cause for reopening. (3) A late appeal to the Board may be treated as a request for reopening.

FACTS: An equipment painter became medically restricted to seated work, which he had never performed for wages. He appeared before the referee without an attorney. His late appeal to the Board was treated as a request for reopening.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “The Board of Review was within its authority in rejecting the so-called Delayed Appeal for lack of jurisdiction because of untimely filing and did properly refer it back to the Referee for a rehearing.”

“The claimant was fully advised of his rights to counsel..”

“[A]fter May 18, 1977 claimant was released and permitted by his doctor to perform ‘seated work only.’ Claimant did not meet the test of able and available for work requirements. The claimant’s testimony at the hearing indicated that all his work experience training and background has been in heavy work active jobs and not seated work.”

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

07. Eligibility - Able & Available

Buczek v Meijer Thrifty Acres – 7.22

Buczek v Meijer Thrifty Acres
Digest no. 7.22

Section 28 (1)(c)

Cite as: Buczek v Meijer Thrifty Acres, No. 79 928 311 AE, unpublished opinion of the Wayne Circuit Court (December 21, 1979).

Appeal pending: No
Claimant: Catherine Buczek
Employer: Meijer Thrifty Acres
Docket no.: B76 19230 55251
Date of decision: December 21, 1979

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CIRCUIT COURT HOLDING: Where a pregnant woman is medically restricted from heavy lifting, and only one of her several assignments is affected, but the employer unilaterally places the claimant on leave, the claimant is unemployed and available for work.

FACTS: The claimant did not request maternity leave, but did submit a doctor’s note restricting her from heavy lifting during her pregnancy. Only one of the claimant’s several assignments required heavy lifting. The employer put the claimant on leave unilaterally.

DECISION: The claimant was unemployed and available for work during the unilateral leave.

RATIONALE: “[W]here an employer decides to place an employee on a maternity leave of absence for a reason other than one contained in MCLA 421.48, the employee, though on an employer imposed leave of absence, is not on a Section 48 leave of absence for purposes of determining her employment status under the Act.”

“She was available for suitable work for which she was qualified except for the heavy lifting limitation. This limitation affected only a portion of one job duty, i.e., lifting groceries into the shopping cart, and neither would have detracted from her ability to perform her other job duties at Meijer nor the office work she was qualified to perform by past experience or training as these jobs did not require heavy lifting within the doctor’s restriction.”

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