LOWER APPEALS DECISION
|DECISION DATE: 10/1/90
|CLAIMANT: Catherine Yancy
||APPEAL NO.: 9011618
|EMPLOYER: Gay Kiddie Shop, Inc.
||L. O. NO.: 009
Issue: Whether the claimant was able, available and actively
seeking work, within the meaning of Section 4(c) of the Law.
- NOTICE OF RIGHT TO PETITION FOR REVIEW-
ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A REVIEW
AND SUCH PETITION FOR REVIEW MAY BE FILED IN ANY OFFICE
OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT, OR WITH
THE APPEALS DIVISION, ROOM 515, 1100 NORTH EUTAW STREET,
BALTIMORE. MARYLAND 21201, EITHER IN PERSON OR BY MAIL.
THE PERIOD FOR FILING A PETITION FOR REVIEW EXPIRES AT MIDNIGHT
ON October 16, 1990.
|For the Claimant:
Claimant - Present
Alexander R. Martick, Esq.
|For the Employer:
FINDINGS OF FACT
The claimant filed an original claim for unemployment insurance
benefits at Towson, effective July 29, 1990.
The claimant has been employed Gay Kiddie Shop, Inc. from
June 4, 1987 to July 23, 1990, and she returned to work
on September 6, 1990.
Separation information from the employer discloses that the claimant
last worked July 26, 1990, had an operation and the doctor
estimated a four to five week recovery; that her expected
date of return to work was September 6, 1990 and the position
was being held for her.
The claimant concedes that she needed an operation to her
right knee. She was seen by the doctor on May 4, 1990.
She became unable to work on July 24, 1990 on or about
which day she had surgery. The claimant was recuperating
and was not ambulatory until August 9, 1990.
Medical certification dated August 10, 1990, states that the claimant
cannot work, and that she had been unable to work from
July 24, 1990 until expected date of return to work of
September 6, 1990. Medical certification by the same doctor
dated August 23, 1990, released the claimant for full-time
work effective August 23, 1990. However, the claimant
was not prepared to go back to work and secured additional
medical certification from the doctor advising that she
may go back to work on September 6, 1990.
The claimant did, in fact, return to work with the same employer
on September 6, 1990, but she is working reduced hours
due to her continuing physical discomforts.
Since the claimant has other occupational skills of that of
secretary or receptionist, she searched for work in these
occupations between August 9, 1990 through at least August 31, 1990.
However, the claimant could have returned to work at any time to
her customary employment with the Gay Kiddie Shop, Inc.,
as soon as she would have been released for work for that
occupation by her doctor.
The claimant has had fourteen years' experience in the retail
business. She has had five months' experience as secretary,
receptionist, telephone operator and the like.
CONCLUSIONS OF LAW
The claimant did not quit her job with Gay Kiddie Shop, Inc. The claimant
was not discharged by that employer. To the contrary,
the claimant requested and was granted a medical leave
of absence based upon her inability to continue to perform
detailed sales work due to a temporary disability to her
right knee, precluding her from prolonged standing.
Counsel correctly points to Section 6(a) of the Statute and the last sentence,
"that if an individual leaves his employment because of
a circumstances relating to the health of the individual.
. . . the individual must furnish a written statement
or other documentary evidence of that health problem from
a physician or hospital."
However, it is noted that this requirement is couched in Section
6(a) of the Statute which pertains to voluntarily leaving
work. However, the claimant did not voluntarily leave
her job, such was an involuntary separation related to
reasons of health. Upon production of such medical documentation,
the Law requires that the claimant establish whether or
not he or she is available for work. Section 4(c) of the
Maryland Unemployment Insurance Law provides that any
unemployed individual is eligible to receive benefits
with respect to any week, only if the Executive Director
finds that he is able to work, and is available for work;
provided no claimant shall be considered ineligible in
any week of unemployment for failure to comply with the
provision of this subsection if such failure is due to
illness or disability which occurs after he has registered
for work and no work which would have been considered
suitable at the time of his initial registration has been
offered after the beginning of such illness or disability.
The requirements of this subsection are specific. First,
the illness or disability must have occurred after he
registered for work. This claimant's illness or disability
began before she registered for work. Further, the subsection
has a duel requirement as specified by the inclusion of
the word "and" that no work which would have been considered
suitable at the time of the initial registration has been
offered after the beginning of such illness or disability.
Since the claimant has neither voluntarily or involuntarily been
terminated from her employment and the employer has held
the position for her with continuing work available to
her, to which she could have returned at anytime if she
had been medically able to do so, and she has in fact
returned to that job, effective September 6, 1990, there
has been a continuing offer of suitable work to her after
the beginning of her illness or disability.
Therefore, based upon the two-fold requirement as stated in the Statute,
the claimant is not able and available for work and is
not eligible for waiver or exemption under Section 4(c)
of the Statute for sick or disability benefits for this
reason, and despite her professed secondary work experience,
it is clear that the claimant's primary employment experience
and classification is in retail sales, and such suitable
work as been available to her throughout the period of
her recuperation from her knee surgery. Accordingly, 1
conclude that the determination of the Claims Examiner
was in conformity with the Law, and was reasonably reached,
and it shall be affirmed.
The claimant was not able and available for work, within the
meaning of Section 4(c) of the Maryland Unemployment Insurance
Law. Benefits are denied for the week beginning July 29,
1990 to September 6, 1990.
The claimant may be eligible for partial unemployment insurance
benefits, if she is working part-time due to reasons which
are not associated with or due to a physical illness or disability.
Robin L. Brodinsky, Hearing Examiner
Date of Hearing: September 26, 1990
lr/Specialist ID: 09664
Cassette No: 7885
Copies mailed on October 1, 1990 to:
Unemployment Insurance -Towson (MABS)
Martick and Martick
Attn: Alexander R. Martick