Fresta v. Miller
| Citation | 7 Mich.App. 58,151 N.W.2d 181 |
| Decision Date | 13 June 1967 |
| Docket Number | Docket No. 1621,No. 1,1 |
| Parties | Rosario FRESTA and Rosaria Fresta, and Guiseppe Ravida and Rosina Ravida, d/b/a Eastman's Cocktail Lounge, Plaintiffs-Appellants, v. Geraldine V. MILLER and Michigan Employment Security Commission, Defendants-Appellees |
| Court | Court of Appeal of Michigan (US) |
Joseph A. Cassese, Cassese & Batchelder, Detroit, for appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, E. J. Setlock, Asst. Atty. Gen., Detroit, for appellees.
Before LESINSKI, C.J., and HOLBROOK and LEVIN, JJ.
Plaintiffs (employers) appeal from an affirmance below of a determination by the appeal board of the Michigan employment security commission which allowed defendant's (employee's) claim for unemployment compensation.
The claimant was employed by the plaintiffs as a waitress-barmaid from 1959 to 1963. The record reveals that the claimant suffered a back injury unrelated to her employment in July, 1963, and was advised by her doctor that she was not to return to work until September. Although plaintiffs allege error in the admission of her evidence of same--a physician's certificate--they do not dispute the fact that she suffered such an injury nor did they object to the introduction of same. This issue was not properly preserved for appeal to this Court. See Opp Cotton Mills, Inc. v. Administrator of the Wage and Hour Division of the Department of Labor (1941), 312 U.S. 126, 155, 61 S.Ct. 524, 85 L.Ed. 624.
Furthermore, the record reveals the following interchange between the referee and one of the plaintiffs:
'Referee: Well, at this point do you question that Mrs. Miller (claimant) had a back condition which prevented her from working full-time?
'A: She probably has, yes.'
Plaintiff did return to work during August, however. According to her testimony, her reason for doing so was to 'help out' her employer(s) (plaintiffs) because they were shorthanded. She further testified that she was unable to report for work on August 10, 1963, because of illness, and that she was fired thereafter. The full account of the events which transpired relevant to this case during the first two weeks of August, 1963, and the claimant's employment history thereafter came to the attention of the Michigan employment security commission in serial fashion, which explains the confusion in the record before us.
On January 16, 1964, the claim at issue here was filed. Although the initial determination was a denial thereof, on April 9, 1964, a redetermination was issued by the commission which found that claimant was discharged for physical inability to continue work; that she was not disqualified for benefits by such discharge; and that a benefit year was established. The employers appealed. Testimony was taken before the referee who found her discharge was for reasons which did not constitute misconduct so as to disqualify her for benefits, but that she did not qualify for benefits because she was physically unable to engage in full-time work from July 15, 1963, until the hearing date of May 20, 1964, and that no benefit year was established by her January 16, 1964 claim. The next step was taken by the claimant who sought a rehearing. At this hearing claimant established that she had worked full-time elsewhere after August, 1963, as she had been employed from September, 1963, Inter alia, by the Alpine Lounge and by the Sea Breeze Lounge. She had later received benefit checks based on credit weeks earned at the latter establishment. She further showed that she had sought full-time employment at various places during the period in question, and that she had engaged in part-time work. The referee found authority under the act to grant her petition for rehearing and found that the claimant was available for full-time work from September 1, 1963, to the date of the rehearing, July 16, 1964; he found that the claimant had sought full-time employment during the period, and that she was eligible for benefits if she otherwise qualified. Bearing on this point, the referee sustained his previous finding that her discharge was for failure to engage in work regularly, steadily, full-time due to physical disability rather than to circumstances consisting of misconduct, and that she was not disqualified for benefits. This decision was appealed by the employers to the appeal board which affirmed the decision of the referee. The appeal board denied the employers' subsequent application for rehearing and plaintiffs appealed to circuit court. In a careful analysis, the lower court's opinion reviewed the events summarized above and concluded that the decision of the appeal board should be affirmed.
Plaintiffs' case is based on two assertions: (1) That the claimant was not able and available for full-time work because of her undisputed back injury; 1 and (2) that even if we should find that she was available for full-time work, that she is disqualified because she left work voluntarily, or was discharged for misconduct which would disqualify her claim. 2
The first few pages of plaintiffs' argument on the first point are devoted to an attempt to show that the defendant was not sick, but rather was malingering during the critical period in August, 1963. The balance of plaintiffs' argument on this issue accuses the claimant of taking contradictory positions and contends that she had no right to a rehearing.
The rehearing was properly granted under section 33 of the Michigan employment security act. 3 As to the alleged contradictory positions taken by claimant, it is apparent from the record as a whole that there was sufficient evidence of her inability to work full-time during August, but that she was able to, and did, resume full-time work in September. She did not file for nor did she claim benefits after her separation in August, 1963. The claimant showed her resumption of full-time work in September, and the referee's finding affirmed by the appeal board and the...
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