Kentucky Unemployment Ins. Commission v. Henry Fischer Packing Co.

• Decision Date: 19 June 1953
• Citation: 259 S.W.2d 436
• Parties: KENTUCKY UNEMPLOYMENT INS. COMMISSION v. HENRY FISCHER PACKING CO.
• Court: Supreme Court of Kentucky

Page 436

259 S.W.2d 436

KENTUCKY UNEMPLOYMENT INS. COMMISSION v.HENRY FISCHER PACKING CO.

Court of Appeals of Kentucky.

June 19, 1953.

R. Campbell Van Sant, Christopher C. Frishe, G. B. Johnson, Jr., Frankfort, for appellant.

Ernest Woodward, II, Woodward, Hobson & Fulton, Louisville, for appellee.

STEWART, Justice.

This is an appeal from a judgment of the lower court reversing an order of the Kentucky Unemployment Insurance Commission granting benefits to Jesse Whalen, now 43 years of age.SeeKRS Chapter 341.

The claimant had been in the employ of appellee, Henry Fischer Packing Company, hereinafter referred to as 'the company,' for four and one-half years as a butcher and scriber.His duties required him to use sharp knives in close proximity to his fellow employees.On June 1, 1950, Whalen suffered a seizure of epilepsy while working.He collapsed and fell against a protruding bolt, sustaining head injuries that required ten stitches to close the wounds.Following this fall, Whalen was examined by physicians in two different hospitals.On June 22, 1950, the company doctor advised it by letter that the claimant had suffered an epileptic seizure and that he believed 'this man has no place in your plant where he might come in contact with machines, knives, or any sharp pointed instruments.In other words, it is important that he be placed on a job where if he should have an epileptic seizure his fall would be short and there would be a minimum of danger in his fall for himself and also for the employees around him.'It was brought out that the claimant had not before and has not since June 1, 1950, been ill from epilepsy.After a conference between company and union officials, it was decided that notwithstanding Whalen's record as a satisfactory employee his best interests would require his dismissal.Efforts were made to obtain employment for him at Nichols Hospital but to no avail.On June 26, 1950, he was discharged.

On July 5, 1950, Whalen filed a claim for unemployment insurance benefits, giving June 1, 1950, as the last day he had worked and his reason for separation from work as 'discharged.'The company, his sole base period employer, duly filed a protest, stating that the reason for separation from employment was 'discharged for misconduct' and 'worker is unable and unavailable for work.'Whalen reported for weeks of unemployment ending July 11 and July 18, 1950.He then worked for another employer for a month until August 16, 1950.On August 24th he reopened his claim for benefits and reported for additional compensable weeks.On the basis of the examiner's investigation, an adjusted determination was issued September 21, 1950, holding that the claimant'was discharged for reasons other than misconduct connected with work,' and that 'claimant is able and available for suitable employment.'The company thereupon filed an appeal for a hearing before the referee.The referee affirmed the adjusted determination.An appeal was then granted for a review by the commission, which in turn upheld the referee's decision.The administrative remedies having been exhausted, the company secured a judicial review, pursuant to KRS 341.450, in the Jefferson Circuit Court, Chancery Branch, Second Division, which rendered a judgment reversing the commission's holding that the claimant was available for suitable work.The commission now seeks a reversal of the judgment.

KRS 341.350 provides that an unemployed worker shall be eligible for benefits, if, among other things:

'* * * (3)He is physically and mentally able to work;

'(4)He is available for suitable work; * * *.'

KRS 341.100 must also be considered as shedding light on the problem at hand.It reads: 'In determining for any purpose under this chapter whether or not any work is suitable for a worker the commission shall consider, among other pertinent conditions, the degree of risk involved to his health, safety and morals; his physical fitness and prior training; his experience and prior earnings; his length of unemployment and prospects for securing local work in his customary occupation; and the distance of the available work from his residence.'

There is no question of the claimant's meeting the other statutory requirements of KRS 341.350.He filed his claim, registered for work, had sufficient wage credits and served a week of unemployment.

The issue to be decided is whether an epileptic who has been engaged in work he otherwise is capable of performing but which he is no longer suitable for, because of the potential hazard to himself and his fellow workers if seized by a fit, may be deemed to be available for work he otherwise is able to labor at for the reason that epilepsy creates no danger to himself or to his fellow workers; and, if the answer to this question is in the affirmative, does the work last described constitute suitable work within the purview of the applicable unemployment insurance law?

The Chancellor, in denying the claimant to be entitled to unemployment benefits, based his ruling upon this conclusion: 'If a man is physically unable to perform his customary labors, the mere fact that he is physically able to perform some other duties should not make him eligible for compensation.'Appellee urges this Court to sustain the Chancellor's view.The commission maintains (a) that this claimant is physically and mentally able to do work which does not require the use of machines, knives, or any sharp pointed instruments, and (b) that this claimant need not necessarily be available for his most recent or customary work but that, on the other hand, he is available for suitable work if he in good faith has sought work which is suitable to his diminished powers and such work is commonly available in the vicinity where he lives.

We must first decide whether this claimant is physically and mentally able to engage in work which may be determined to be suitable because it does not embrace the dangers which rendered his previous work unsuitable.This proposition...