McKentry v. Employment Security Commission , 99 Mich. App. 277 ( 1980 )

99 Mich. App. 277 (1980) 297 N.W.2d 652

McKENTRY
v.
EMPLOYMENT SECURITY COMMISSION

Docket No. 43884.

Michigan Court of Appeals.

Decided August 11, 1980.

McCroskey, Libner, Van Leuven, Feldman, Kortering, Cochrane & Brock (by Robert O. Chessman), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James H. White, Assistant Attorney General, for defendants.

Before: DANHOF, C.J., and R.B. BURNS and MacKENZIE, JJ.

R.B. BURNS, J.

Plaintiff appeals a judgment of the circuit court which affirmed the decision of the Michigan Employment Security Appeal Board denying plaintiff benefits under the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., for the period January 11, 1976, through August 18, 1976.

The plaintiff began working for defendant Goodwill Industries September 30, 1974. She worked for Goodwill until November 14, 1975, when she left to take a job with defendant Muskegon Area Intermediate School District. Plaintiff worked for the school district as a teacher's aide. She had worked only two days when she had trouble with her knee. Plaintiff's employment was terminated by defendant school district on November 19, 1975, due to her inability to appear for work. Plaintiff's physician treated her for thrombophlebitis and released her for work January 8, 1976.

Plaintiff filed a claim for unemployment benefits on January 8, 1976. The claim was denied. On redetermination the referee stated, "[t]he record is clear in this matter that claimant is and has been unable to do her customary work since November 19, 1975". Plaintiff was determined to be ineligible for benefits under subsection 28(1)(c) of the act. MCL 421.28(1)(c); MSA 17.530(1)(c). The appeal board and the circuit court judge affirmed the decision of the referee. In affirming the referee's decision, the circuit court stated:

"Mrs. McKentry by her own admission has stated that due to her physical condition she is unable to continue full-time employment in the nature of the job she held at the Intermediate School District."

Subsection 28(1)(c) of the act sets forth the criteria for determining a claimant's ability and availability to perform full-time work. The subsection requires that a claiment be:

"able and available to perform suitable full-time work of a character which he is qualified to perform by past experience or training, and of a character generally similar to work for which he has previously received wages". (Emphasis supplied.) MCL 421.28(1)(c); MSA 17.530(1)(c).

At the hearing before the referee, plaintiff testified that she could not return to work for defendant school district because she could not stand on her feet all day. However, she also testified that there was work which she had performed in the past which she could still do, such as working for the telephone company or for Misco Corporation. Both of these jobs gave plaintiff an opportunity to spend part of the day sitting down.

The lower court and the administrative agency focused on the fact that the plaintiff could not perform the job she last held with defendant school district in determining that plaintiff was not able and available to perform full-time work. A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that "[h]e is able and available to perform full-time work * * * for which he has previously received wages".

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.