Dunn, In re

• Decision Date: 03 April 1973
• Docket Number: No. 144-72,144-72
• Parties: In re Charles A. DUNN.
• Court: Vermont Supreme Court

Page 602

305 A.2d 602

131 Vt. 261

In re Charles A. DUNN.

No. 144-72.

Supreme Court of Vermont.

April 3, 1973.

Reargument Denied May 4, 1973.

Zander B. Rubin, Vermont Legal Aid, Inc., Rutland, for plaintiff.

Kimberly B. Cheney, Atty. Gen., and Raymond S. Fitzpatrick, Asst. Atty. Gen., for Employment Security Board.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

DALEY, Justice.

This is an appeal from a decision of the Vermont Employment Security Board (hereinafter called the board), denying the appellant's claims for unemployment compensation benefits. The three questions of law which were certified to this Court by the board as required by V.R.A.P. Rule 13(d) are as follows:

(1) Does the evidence in the case tend to support the findings of fact of the Vermont Employment Security Board?

(2) If the evidence in the case fairly and reasonably tends to support the findings of fact, do the findings of fact fairly and reasonably tend to support the conclusions of the Vermont Employment Security Board?

(3) If the findings of fact fairly and reasonably tend to support the conclusions of the Vermont Employment Security Board, do the conclusions fairly and reasonably tend to support the decision of the Board in this case?

The appellant, a man sixty-eight years of age, left his previous job at the Pownal Tannery on July 2, 1971, for health reasons. He then sought employment in the area in which he resided, but was unable to secure any employment.

He submitted his first claim for benefits on July 7, 1971, and continued to submit claims each week subsequent thereto. From September, 1971, through November, 1971, the appellant was treated for a peripheral vascular disease, and as of the date of his last treatment on November 22, 1971, he could only perform work that was completely sedentary. The appellant concedes that he was not eligible for benefits during these weeks that he received the aforementioned treatment.

On December 7, 1971, the claims examiner denied the appellant's claims for benefits. Subsequently, the appellant's condition improved. A medical report dated February 4, 1972, showed that he was treated for painful metatarsal arches from January 31 to February 4, but this report stated that he could perform light work.

On February 22, 1973, the appeals referee, reviewing the decision of the claims examiner, found that the appellant was willing and able to perform light work, and that since November 27, 1971, the appellant made thirty-eight contacts seeking work. However, the contacts only consisted of nine employers, only two of which were outside the town in which he resides. The majority of the contacts were repeat contacts.

The referee, citing 21 V.S.A. § 1343(a)(3), concluded:

'(C)laimant's actions are not those of a prudent individual actively seeking work and, he fails to show a genuine attachment to the general labor market. An individual to be considered available for work, within the meaning of the statute, must be seeking work within all of his labor market area and, not continually contact the same employers each week seeking work where he knows they are not hiring new employees.'

On February 29, 1972, the appellant took an appeal from the decision of the referee to the board with a request to present additional evidence. That evidence, in addition to the records of the evidence presented in the proceedings before the examiner and the referee, was the testimony of the appellant himself and a Mr. Frank H. Mudgett, the manager of the Unemployment Compensation Division of the Department of Employment Security.

Mr. Mudgett was called upon by the chairman of the board to testify on the labor market area for a person from the appellant's place of residence. Mr. Mudgett testified that he was unfamiliar with the labor market of the appellant's place of residence.

The appellant himself was questioned as to the labor market around his place of residence. He listed several businesses, all of which were listed on his claims for benefits as contacts for employment.

When questioned about his health, the appellant responded, 'Well, I'm in good health I know.'

The appellant next testified as to his job experience. Comparing his testimony with his entries under 'Type of Work Sought' on his claims for benefits, those types of employment were those in which he had previous experience.

The questioning of the appellant then was directed to the location of the employment sought and available transportation. He testified that most of the employment sought was within walking distance, i. e., within two miles from his home. He had contacted employers outside of this two mile radius by having his son taking him in his car (his own car being inoperable), and his applications indicated the use of the telephone for other contacts. When questioned about his use of existing public transportation, he testified that the buses ran every two hours and did not run after 6 p. m., and he had not utilized such public transportation in seeking employment.

Following findings of fact, the board, citing 21 V.S.A. § 1343(a)(3), concluded:

'(T)he claimant . . . was able to perform light work. It is further concluded that claimant is not available for work when his contacts for work are limited to employers within walking distance from his home, when he has no transportation to work and has made no effort to utilize such public transportation as may be available, and when it has not been shown that there is a substantial amount of work that he is able and capable of performing in the limited area within which he could accept work.'

The board decided that: 'The decision of the Appeals Referee is affirmed and claims for and subsequent to the week ending November 27, 1971, are denied accordingly.'

The portion of the statute cited by both the appeals referee and the board as authority for denying the appellant's claims for unemployment compensation benefits is from 21 V.S.A. § 1343(a)(3), which reads as follows:

'An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that:

(3) He is able to work, and is available for work. . . .'

Both the hearing referee and the board found that the appellant was able to perform light work. But the appellant was denied unemployment compensation benefits because he was found not to be available for work.

This Court has utilized the definition found in Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1945), to define the phrase 'avaiable for work', in Willard v. Unemployment Compensation Commission, 122 Vt. 398, 402, ...