21 Pa. Commw. 341 | Pa. Commw. Ct. | 1975
Opinion by
The appellant Joseph J. Patsy, an unemployment compensation claimant, was employed as a bartender in Carlisle. He fractured his leg in an accident unrelated to his employment and the leg was placed in a cast. His temporary partial disability resulted in the loss of his job. Mr. Patsy applied to the Bureau of Employment Security for unemployment compensation, furnishing
Where the decision of the Unemployment Compensation Board of Review is against the party with the burden of proof, the reviewing court, in the absence of error of law or showing of fraud, determines only whether the findings of fact are consistent with each other and with the Board’s conclusion of law and whether the order can be sustained without a capricious disregard of competent evidence. Walsh v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 155, 329 A.2d 523 (1974). The burden is upon an applicant for unemployment compensation benefits to prove availability and, while a prima facie case of availability is established by proof that the applicant registered for work and declared his availability, such a showing is rebuttable. Dingel v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 484, 322 A.2d 731 (1974)i. The question of availability of the employe for suitable employment is largely one of fact for the Unemployment Compensation Board of Review. Graham v. Unemployment Compensation Board of Review, 14 Pa. Common
The appellant states that he is able and available for light work of a sedentary nature. He relies on his doctor’s opinion, his former experience as a salesman and his attendance at an interview for a sedentary job at another bar. He adequately proved, in our opinion, that he was able and available to perform sedentary work. His proofs on the subject of the opportunity in the Carlisle area of obtaining such work were, however, meager at best. The substantive portion of the transcript of the referee’s hearing fills less than two pages. Without intending adverse criticism of the referee, we note the Board’s rule appearing at 34 Pa. Code §101.21 (a) requiring referees to assist unrepresented claimants in the presentation of their cases. We have concluded that the matter should be remanded for further hearing at which the claimant may have the opportunity to adduce, if he can, proof that work suitable to his diminished physical capacities was available in the area of his residence.
And Now, this 10th day of October, 1975, it is ordered that the record be and it is hereby remanded to the Unemployment Compensation Board of Review for further proceedings consistent with this opinion.
. Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801 (d).