Chrysler Corp v Sellers – 7.08

Chrysler Corp v Sellers
Digest no. 7.08

Section 28(1)(c)

Cite as: Chrysler Corp v Sellers, 105 Mich App 715 (1981).

Appeal pending: No
Claimant: Woodrow W. Sellers
Docket no.: B76 9783 RM 58420
Employer: Chrysler Corporation
Date of decision: April 22, 1981

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COURT OF APPEALS HOLDING: Where a retired auto worker excludes auto plants from his or her active work search, to avoid further exposure to smoke and dust, but seeks other work which the individual has performed, the claimant is available for work and seeking work.

FACTS: “Prior to working at Chrysler, claimant had acquired work experience as a service station attendant and janitor. After retiring, claimant sought work at service stations, hospitals and small shops or factories, but he did not seek employment in an auto factory because of his previous exposure to smoke and dust at such jobs.” He testified to having sought work three or four times each week.

DECISION: “This case is remanded to the Commission for a hearing at which the claimant’s eligibility for benefits, in relation to his pension, will be determined under MCL 421.27(f); MSA 17.529(f).”

RATIONALE: The Court cited McKentry v ESC, 99 Mich App 277 (1980). “According to McKentry, claimant’s failure to actively seek a job like his last one does not constitute a material restriction of his availability under the Act. Just as the claimant in McKentry did not actively seek employment as a teacher’s aide because it aggravated her physical condition, claimant in the instant case did not actively seek work in a large auto factory because he wished to avoid further exposure to smoke. Viewing the evidence as a whole, we do not find the claimant’s failure to apply for auto plant work so significantly impaired his availability for work as to permit reversal.” “Viewing the evidence in its entirety, we find that the Board of Review’s conclusion regarding the claimant’s efforts to secure employment was based upon competent, material and substantial evidence.”

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Bateman v Jackson Industrial Manufacturing Co – 7.17

Bateman v Jackson Industrial Manufacturing Co
Digest no. 7.17

Section 28(1)(c)

Cite as: Bateman v Jackson Industrial Manufacturing Co, unpublished opinion of the Kent County Circuit Court, issued May 5, 1980 (Docket No. 80 29462 AE).

Appeal pending: No
Claimant: Robert L. Bateman
Employer: Jackson Industrial Manufacturing Company
Docket no.: B77 10805 RO2 62489
Date of decision: May 5, 1980

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CIRCUIT COURT HOLDING: (1) Where a medical restriction limits an individual to seated work, which the claimant has never performed for wages, the claimant is not able and available for work. (2) Lack of counsel is not good cause for reopening. (3) A late appeal to the Board may be treated as a request for reopening.

FACTS: An equipment painter became medically restricted to seated work, which he had never performed for wages. He appeared before the referee without an attorney. His late appeal to the Board was treated as a request for reopening.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “The Board of Review was within its authority in rejecting the so-called Delayed Appeal for lack of jurisdiction because of untimely filing and did properly refer it back to the Referee for a rehearing.”

“The claimant was fully advised of his rights to counsel..”

“[A]fter May 18, 1977 claimant was released and permitted by his doctor to perform ‘seated work only.’ Claimant did not meet the test of able and available for work requirements. The claimant’s testimony at the hearing indicated that all his work experience training and background has been in heavy work active jobs and not seated work.”

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Hinga v Brown Co – 7.06

Hinga v Brown Co
Digest no. 7.06

Section 28(1)(c)

Cite as: Hinga v Brown Co, unpublished opinion of the Court of Appeals of Michigan, issued January 25, 1980 (Docket No. B76 2157 50644).

Appeal pending: No
Claimant: Edward G. Hinga
Employer: Brown Company
Docket no.: B76 2157 50644
Date of decision: January 25, 1980

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COURT OF APPEALS HOLDING: Where an individual seeks supervisory and non-union work, but is willing to accept non-supervisory and union work, such preferences do not make the claimant unavailable for work.

FACTS: The claimant had previously worked as an unskilled laborer and as a shipping supervisor. He concentrated his work search on supervisory and non-union positions. The claimant contacted four employers in seven months. A waiver of seeking work was in effect.

DECISION: The claimant was available for work.

RATIONALE: “We hold, after reviewing the record as a whole, that the referee’s conclusion that plaintiff removed himself from the labor market is not supported by competent, material, and substantial evidence. The undisputed evidence showed that while plain tiff preferred supervisory work, he would take other work and while he preferred non-union work, he would accept union work. The referee erred when he held that this removed plaintiff from the labor market.”

“[T]he commission waived the seeking work requirement as to all claimants in Kalamazoo County from 5/25/75 to 7/17/76. Thus, plaintiff was entitled to rely on the representation that he need not seek work in order to be eligible for benefits.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

McKentry v MESC – 7.28

McKentry v MESC
Digest no. 7.28

Section 28(1)(c)

Cite as: McKentry v MESC, 99 Mich App 277 (1980).

Appeal pending: No
Claimant: Bessie McKentry, et al.
Employer: Muskegon Area Intermediate School District
Docket no.: 43884
Date of decision: August 11, 1980

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COURT OF APPEALS HOLDING: “A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that ‘he is able and available to perform full-time work for which has previously received wages.'”

FACTS: The claimant, a teacher aide, was treated for knee trouble.

“[P]laintiff 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.”

DECISION: The claimant is eligible for benefits.

RATIONALE: “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 ‘he is able and available to perform full-time work for which he has previously received wages.'”

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90