General (Able and Available 190.05)
1. The question of ability to work frequently
arises in cases when the claimant's employment was terminated by an illness or
operation, but the claimant alleges a sufficient recovery to be able to return
to work in his usual occupation. Any presumption of inability arising from a
recent illness or operation may be rebutted by evidence showing the actual
return to work following the illness or operation without a relapse. Employment
subsequent to an illness is sufficient evidence of ability to work, provided it
is not terminated because the individual has returned to work prematurely or
found on trial he would be unable to do that type of work any longer.
2. Availability for work is more subjective
and intangible than ability however, there are certain objective factors that
may be applied in determining availability.
Burden of proof and presumptions (Able and
1. When the claimant's
physician states that the claimant is unable to do any work, the claimant may
be presumed unable to work. However, when the claimant subsequently secures
employment which is terminated by a layoff or a voluntary quit, either of which
attributable to the claimant's lack of physical capacity to perform the work,
his subsequent employment will not be sufficient in itself to overcome the
physician's statement that the claimant is unable to work. Additional evidence
however, may be presented to show that he is able to work.
2. A claimant may be presumed able to work
when a physician certifies that the claimant can engage in full-time restricted
work, provided the claimant is qualified to perform such work. A claimant may
be presumed unable to work when a physician states he should not work for a
specified period of time.
claimant who states that he is able and willing to accept a part-time job but
is unable to accept a full-time job because of a physical disability may be
presumed to be unable to work. A claimant who states that he is unable to work
is considered unable to work.
The best proof of ability is evidence that work has actually been done by the
claimant despite his physical disability. In the absence of evidence that the
claimant's condition has altered, this is proof of ability. For example, a
totally blind claimant was determined able to work when he showed that he had
worked for two years as a machine fitter in a workshop for the blind.
A presumption of ability to work arises
from the claimant's certification of ability and the statement of the reason
for separation from his last employment for causes other than a disability.
However, an availability issue may be raised at any time during the claims
filing or work registration process. Among the factors which may raise such an
a. Allegations made by the employer
or other interested persons.
claimant's oral or written statements.
c. The adjudicator's observation of an
claimant's receipt of disability compensation, health insurance benefits, or
or refusal of work because of physical restrictions.
f. Evidence that the claimant was unemployed
for long periods of time, or intermittently, because of his physical
questions of inability do arise the claimant has the burden of establishing his
ability to work. The presumption of disability may be rebutted by the claimant
through any or all of the following: medical evidence, proof of employment,
under the same circumstances prior to the date of the claim and discovery of
additional work skills.
presumption of unavailability may be raised by various circumstances such as:
a. Voluntary leaving of employment.
b. Refusal of work.
c. Discharge for misconduct.
d. Failure to register for work.
e. A long period of unemployment, or self
f. Attendance at school
or training, other than approved training.
g. Allegations by interested
h. Domestic or personal
claimant's certification that he is available for work is accepted as prima
facie evidence of availability in the absence of evidence to the contrary. His
statement that he is unwilling to accept work is accepted as proof of his
unavailability. Seeking work, regular reporting to the Job Service office and
registration for work is evidence of availability.
9. Statement of specific conditions and
limitations on the type of work or the circumstances under which work will be
accepted may create presumptions of unavailability. For example, the
presumption of unavailability exists where a claimant states that he will only
accept work of a type for which he is inadequately qualified by his inability
to meet established standards, union membership requirements, and the like, or,
where he restricts himself to work which does not exist in the community. There
must be a reasonable possibility of his obtaining the type of work for which he
claims he is available during the hours to which he restricts himself, at the
wages, and under the conditions stipulated by him. The work to which he
restricts himself must be in a recognized occupation.
Weight and sufficiency (Able and Available
1. Many factors relating to ability
are identical with those bearing on availability. Factors involving involuntary
leaving, refusal of work, failure to report to the local office, and a long
period of unemployment are reviewed under the subject of availability.
Additional factors relating exclusively to the establishment of ability to work
are treated in paragraphs (2) and (3) of this rule.
2. The claimant who is unable to engage in
his usual occupation because of illness or disability may be presumed able to
work if he is qualified by training and experience for other work. In such
cases, a doctor's certificate generally is sufficient evidence of ability, but
the nature of the certificate should be scrutinized carefully. For example, a
certificate showing that a claimant is able to engage in a "sedentary
occupation, such as boot and shoe repairing," is not proof of ability when the
claimant does not have the skill or training requisites for such an occupation.
The recency of the physical examination must be considered in evaluating a
medical report. When medical reports of the claimant's ability to work
conflict, the major emphasis is placed upon the statement which most conforms
to other information in the possession of the adjudicator.
3. A doctor's opinion that a worker's
physical condition makes him more susceptible to industrial injuries and a bad
employment risk is not of itself conclusive evidence, that the worker is unable
to work. The term "ability to work" is interpreted as the actual physical
ability of a claimant to perform work for which he is qualified.
4. The most convincing evidence of
availability is full-time employment. Although an individual may have left work
because of domestic duties, the fact that he subsequently accepts work when
offered is evidence of availability for work. Previous full-time employment
under circumstances similar to the individual's present circumstances is
evidence of availability. For example, the individual who restricts herself to
day work only because she is unable to find someone to care for her child
except during the day is available for work if such work is generally performed
in the area.
5. The extent to which
a claimant's restrictions limit his possibility for employment is the criterion
for establishing his availability.