IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lakeisha Whitehurst, :

Petitioner :

v. : No. 309 C.D. 2023

:

Unemployment Compensation : Submitted: May 7, 2024

Board of Review, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: June 24, 2024

Lakeisha Whitehurst (Claimant), proceeding pro se, petitions for review

of the order of the Unemployment Compensation Board of Review (Board) mailed 

January 26, 2023. The order affirmed the decision of the Referee, which found 

Claimant ineligible for benefits under the provisions of Section 401(d)(1) of the 

Unemployment Compensation Law (Law)1and denied benefits for claim weeks ending 

January 22, 2022, to June 25, 2022, when Claimant was on a six-month maternity leave 

of absence. After careful review, we affirm.

I. Background

Claimant was employed full time as a social work services manager with

the City of Philadelphia Department of Prisons (Employer). (Certified Record (C.R.)

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 

801(d)(1).
2

at 006.) On December 31, 2021, Claimant had an emergency cesarean section (csection) and delivered her baby prematurely at 27 weeks. Id. at 048. Employer did not 

offer light-duty work and placed Claimant on an unpaid maternity leave of absence 

effective December 31, 2021, with an expected return to work date of June 30, 2022. 

Id. at 047-048. On January 18, 2022, while on the approved leave of absence, Claimant

filed for unemployment compensation (UC) benefits. In her March 27, 2022 responses 

to the Illness/Injury/Disability Questionnaire (Questionnaire), Claimant answered “no” 

to the questions “Are you available to work?” and “Are you able to work?” Id. at 046-

47. Claimant stated: “I delivered my baby prematurely via emergency c-section [at]

27 weeks due to severe preeclampsia, pulmonary embolisms[,] and deep vein 

thrombosis[,] and I am currently under [doctor’s] care for these illnesses. I am still 

being treated for these illnesses while on unpaid maternity leave.” Id. The 

Questionnaire also asked, “Do you presently have other restrictions limiting your 

ability and/or availability for work?” Claimant answered “yes” and explained further:

I have a newborn baby that has just come home from the 

[Neonatal Intensive Care Unit [NICU)] roughly a week or so 

ago. Also, I am being treated for the above-mentioned 

Illnesses, and I am unable to walk long distances, sit or stand 

for a long period of time without taking a break. I am 

[c]urrently employed as a [s]ocial [w]orker in the 

Philadelphia [Department] of Prisons. Unfortunately[,] my 

position does [not] off[er] “light duty” for my job 

description. I am required to sit one hour a day on the housing 

unit to provide services to the inmates. I am also required to 

conduct in[-]office interviews, which can take more than an 

hour to complete. I am not allowed to leave an inmate to take 

a break during an interview, which is needed at the moment 

with the deep vein thrombosis.

Id.

On April 22, 2022, the Harrisburg UC Service Center issued its 

determination, concluding that Claimant was not able and was not available to work 
3

beginning January 16, 2022, and, therefore, did not qualify for UC benefits pursuant to 

Section 401(d)(1) of the Law. On May 24, 2022, Claimant appealed, disputing the 

determination that she was not able and available to work while on maternity leave of 

absence. Id. at 065-067. 

In late June 2022, Claimant’s doctor released her to return to her position 

with Employer without any restrictions. Id. at 129. Employer, per its policy, then sent 

her to its own physician who medically cleared Claimant to return to work on July 5, 

2022. Id. at 135. Claimant returned to work at the prison on July 6, 2022.

Thereafter, a hearing was held before a Referee on August 29, 2022, at 

which Claimant testified on her own behalf, and Employer did not present any 

testimony. Claimant testified that she was employed as a full-time social worker and 

her last day of work was December 28, 2021. Id. at 103. She began a leave of absence 

effective December 31, 2021, because, on said date, she gave birth through an 

emergency c-section due to a pregnancy-related medical condition. Id. Claimant stated 

that sometime in June 2022 she was released by her doctor to return to work, but 

Employer required a medical release from its own doctor prior to resuming 

employment. Id. at 105-06. Claimant also testified that originally, she planned to take 

maternity leave in March 2022 around the baby’s due date, but the baby was delivered 

on December 31, 2021, at 27 weeks, which required the baby to stay in the NICU. Id.

at 106. 

Subsequently, another hearing was held on September 23, 2022, to 

specifically address the question of whether Claimant was able and available to 

perform suitable work while on maternity leave of absence, as required by Section 

401(d)(1) of the Law. The Referee incorporated by reference the testimony Claimant 

gave at the first hearing because Claimant testified regarding the reason she took a 
4

leave of absence which was relevant to the actual determination of her appeal. Id. at 

126. Additionally, Claimant had provided the following responses to the Referee:

[Referee]: Well, at some point, did you inform your 

employer that you were able and available to return to your 

usual job?

[Claimant]: Yes.

[Referee]: And do you recall when you informed them of 

that?

[Claimant]: I want to say at the end of June [2022], as well.

* * * *

[Referee]: Well, is there anything else you would like to add 

on the subject of whether you were medically able to work 

and available to do suitable work during the weeks that you 

were claiming UC benefits?

[Claimant]: So I was confused about when they say was I

able and available, because I was trying to understand if it 

was just in general or was it specific to my department? And 

that was a vague question, so there was confusion for me

there. I work inside of a prison and I do social work. So if I

was able to do my actual job in the prison from home, I would 

not be able to do my job from the prison. But if you ask me

if I was able to do social work outside of the prison in another 

department or agency that had at-home work, then yes, I was 

able to work. So the question is vague. It doesn’t say if its 

generally or specific to my department.

[Referee]: Well, there are two separate issues. Number one, 

were you medically able to do some type of work at some 

point? 

[Claimant]: Yes

[Referee]: You testified that you received medical clearance 

from your own doctor in late June.

[Claimant]: Right to go back to [Employer]. There was no 

other thing that told me that I needed to have medical 

clearance to go to work in general. I got clearance to go back 

to work for [Employer] off of the maternity leave.
5

[Referee]: So you did not discuss that with your doctor 

because, well, you did not discuss clearing you to return to 

some other work environment. Correct?

[Claimant]: No, I didn’t have that conversation with my 

doctor for another environment. And I didn’t have that

conversation because I had a recall date for my position [with 

Employer].

(Notes of Testimony (N.T.), Hearing 09/23/22, pp. 7-8; C.R. at 130-31.)

[Claimant]: So with [Employer], the work that I do, like I was 

explaining, is inside the prison. And we have a special

system. However, [Employer] did not have me – they did 

not offer me anything else to do. So I wanted to put that on 

record, because I was thinking about it where they had not 

give me, they had to say, okay, well, you cannot do you 

normal job here because the system is, basically, for the 

prison. And it is a breach of security to do it outside. But 

here is something else that you can do. They did not offer 

my anything else.

(N.T. Hearing 09/23/22, p. 8; C.R. at 131.) Employer, once again, did not present any 

testimony. Id. at 126. 

At the conclusion of the hearing, the Referee modified the UC Service 

Center’s determination to grant Claimant benefits for the weeks ending July 2, 2022, 

and July 9, 2022, to account for the delay between Claimant’s doctor’s clearance and 

Employer’s doctor’s clearance but denied benefits pursuant to Section 401(d)(1) of the 

Law for claim weeks ending January 22, 2022, through June 25, 2022, when Claimant 

was on leave of absence. Id. at 134-43. The Referee reasoned:

Section 401(d)(1) of the [Law] provides that, for any weeks 

in which they claim compensation, claimants must be able to 

perform, and be available for, suitable work, and claimants 

have the burden of proving that they are both able and 

available. The [UC] Service Center is supposed to determine 

whether claimants meet the requirements of this Section on a 

week-by-week basis. In this case, [] [C]laimant testified that, 

at some point during the maternity leave, she would have 

been able to work if she could do so from home but that []
6

[E]mployer did not offer this accommodation due to security 

concerns. While [] [C]laimant’s testimony is credible that [] 

[E]mployer would not have allowed such an accommodation, 

and even presuming she was medically able to perform work 

from home shortly after filing the UC application, she did not 

show that she was “available” for suitable work because she 

did not intend to work from home during said period; this, 

plus the medical and child care needs associated with the 

recent childbirth, does not support a finding that she was 

realistically attached to the labor market. She did not, 

therefore, meet the requirements of Section 401(d)(1) during 

the period of maternity leave except for the claim weeks 

ending July 2[, 2022,] and July 9, 2022; she established she 

was medically cleared to return to her job during “late June” 

and informed [] [E]mployer thereof immediately but, due to

[E]mployer’s requirement that she attend its medical 

appointment first, she was delayed in her return.

Id. at 135-36. 

On September 28, 2022, Claimant appealed the Referee’s decision. Id. at 

145-47. On January 26, 2023, the Board mailed its order affirming the Referee’s

decision and concluding that Claimant failed to show that she was able to perform, and 

available for any type of work. The Board explained:

When a claimant files for UC benefits, it is presumed that she 

is both able and available to work. The presumption is 

rebuttable by some evidence that suggests that the claimant’s 

ability or willingness to work. Once the presumption is 

rebutted, the claimant must prove that she is ready, willing, 

and able to accept some type of work, and that there is a 

reasonable opportunity for securing such work in the vicinity 

in which the claimant lives. Additionally, claimants do not 

have to prove that they are available for their customary line 

of work, but only that they are able to do some type of work 

and that there is a reasonable opportunity for securing such 

work in the vicinity where they live.

In this case, the presumption has been rebutted by [] 

[C]laimant’s own statements in the claim record that she was 

not available for work due to illness, injury, or disability. She 
7

further explains that she underwent an emergency cesarean 

delivery and subsequently suffered from severe 

preeclampsia, pulmonary embolisms, and deep vein 

thrombosis and was under a doctor’s care for these 

pregnancy complications. [] [C]laimant was unable to walk 

long distances, sit, or stand for long periods of time without 

taking a break, and the prison did not offer light duty. 

While [] [C]laimant is not required to be able and available 

for her customary line of work, she must show that she is able 

and available for some kind of work. [] [C]laimant believed 

she was able and available for some type of work at some 

point but does not offer any date that she became available 

for some type of work. She did not request a release from her 

doctor until late June 2022 because [] [E]mployer could not 

offer light duty to her as her job had to be performed inside 

the prison. In late June 2022, [] [C]laimant’s doctor released 

her to return to work with [Employer] without restrictions. [] 

[E]mployer then sent her to its own physician who medically 

cleared her to return to work without restrictions on July 6, 

2022. Therefore, the Board finds that [] [C]laimant was not 

able and available for work for claim weeks ending January 

22, 2022, to June 25, 2022. [] [C]laimant was able and 

available for work for the claim weeks ending July 2, 2022,

and July 9, 2022. 

On appeal, [] [C]laimant contends that giving birth to her 

child should not exclude her from benefits. Unfortunately for 

[] [C]laimant, unemployment compensation benefits are not 

to cover weeks in which the claimant is not realistically

attached to the labor market. Once the presumption is 

rebutted, the claimant has to show that she could perform 

some type of work and that she had a reasonable opportunity 

to secure such work. The record shows that [] [C]laimant’s

ability was hindered due to giving birth. [] [C]laimant then 

failed to show she had a reasonable attachment to the labor 

market as required by law.

Id. at 162-68. 

Claimant now petitions this Court for review of the Board’s order.
8

II. Issues

In her Statement of Questions Involved, Claimant raises the following two 

issues:

1. Did the [Board] commit an error of law and/or abuse its discretion by 

failing to make plain that claimants do not have to prove that they are available for their 

customary line of work, but only that they are able to do some type of work?

2. Did the [Board] commit an error of law and/or abuse its discretion by 

denying [Claimant] benefits due to childbirth?

(Claimant’s Br. at 4.)

III. Parties’ Arguments

From what we can glean from Claimant’s brief, her first issue relates to 

the alleged vagueness of the Questionnaire. Claimant asserts: “The [Board] states that 

claimants do not have to prove that they are available for their customary line of work, 

but only that they are able to do some type of work and that there is a reasonable 

opportunity for securing such work in the vicinity where they live. That information is 

not conveyed when applying for benefits.” (Claimant’s Br. at 7.) Claimant seems to 

be arguing that the Board should not have relied on her answers on the Questionnaire 

because it was unclear whether the question pertained to her ability and availability to 

work for Employer as opposed to her ability and availability to work for another 

employer in a light-duty, hybrid or remote position. She maintains that had the 

question been properly explained, she would have responded that she was able to 

perform “various ways of work, such as remote work, hybrid work and work within 

less erratic conditions.” Id. at 8. Therefore, the Board erred when it found she was not 

able and available to work during claim weeks ending January 22, 2022, to June 25, 

2022. 
9

Claimant next argues that the Board erred when it concluded that she was 

not realistically attached to the labor market because of childbirth. She asserts:

Childbirth should not exclude someone from being 

“realistically attached to the labor market.” Women have 

children every day, have babies in the NICU, and have 

medical conditions and still work. In my opinion if I may 

state, the aforementioned scenarios were used against me 

negatively to deny benefits. The world has moved to various 

ways of work, such as remote work, hybrid work and work 

within less erratic conditions, which I could have done as 

well. 

Id. at 8. 

In response, Employer asserts that even though Claimant stated that she 

was medically able to do some work at some point in time, she did not say when that 

was. (Employer’s Br. at 8-9.) In addition, Employer contends that because Claimant 

acknowledged that she did not have a conversation with her doctor regarding her ability 

to work despite her medical conditions and because Claimant did not provide any proof 

that she was able to work before she was officially cleared by her doctor in June of 

2022, Claimant did not carry her burden of proof. 

IV. Discussion

A. General Legal Principles

Our review in UC cases is limited to determining whether there is a 

constitutional violation, an error of law, a failure of the Board to follow procedure, or 

findings which lack the support of substantial evidence in the Board’s adjudication. 

Procito v. Unemployment Compensation Board of Review, 945 A.2d 261, 262 n.1 (Pa. 

Cmwlth. 2008). “Substantial evidence is defined as relevant evidence upon which a 

reasonable mind could base a conclusion.” Stage Road Poultry Catchers v. Department

of Labor & Industry, Office of Unemployment Compensation, Tax Services, 34 A.3d 

876, 885 (Pa. Cmwlth. 2011). In addition, the Board serves as factfinder, empowered 
10

to resolve conflicts in evidence and render credibility determinations. Procito, 945 

A.2d at 262 n.1.

Section 401(d)(1) of the Law provides, in relevant part, that 

“[c]ompensation shall be payable to any employe[e] who is or becomes unemployed, 

and who . . . [i]s able to work and available for suitable work.” 43 P.S. § 801(d)(1). 

Although a claimant bears the burden of proving availability for suitable work, an 

unemployed worker who registers for UC benefits is presumed to be available under 

Section 401(d)(1). Rohde v. Unemployment Compensation Board of Review, 28 A.3d 

237, 243 (Pa. Cmwlth. 2011). “[E]vidence that a claimant’s physical condition limits 

the type of work [the claimant] is available to accept” serves to rebut the presumption. 

Molnar v. Unemployment Compensation Board of Review, 397 A.2d 869, 870 (Pa. 

Cmwlth. 1979). If evidence rebuts the presumption of availability, the burden shifts to 

the claimant to establish that she was able to do some type of work, and that there was 

a reasonable opportunity for securing work. Id. The ultimate issue is whether 

conditions on the claimant’s employment would so limit her availability as to 

effectively remove her from the labor market. Rhode, 28 A.3d at 243. Stated 

differently, the issue is whether the conditions “would give a search for employment

an unreasonably low possibility of success.” Kuzma v. Unemployment Compensation

Board of Review, 523 A.2d 830, 833 (Pa. Cmwlth. 1987) (citations omitted).

This Court has declined to hold as a matter of law that any claimant on a 

leave of absence is unavailable for suitable work. Tokar v. Unemployment 

Compensation Board of Review, 385 A.2d 634 (Pa. Cmwlth. 1978). It is well 

established that “[i]t may not be presumed as a matter of law that a person on a leave 

of absence from his previous job is unavailable for work. It follows, as we have also 

held, that a woman may not be presumed unavailable for work, simply because she was 
11

placed on a pregnancy leave of absence.” Pennsylvania Electric Co. v. Unemployment 

Compensation Board of Review, 450 A.2d, 779, 782 (Pa. Cmwlth. 1982); Wincek v. 

Unemployment Compensation Board of Review, 412 A.2d 699, 701 (Pa. Cmwlth. 1980) 

(citations omitted). 

B. Analysis

Applying these principles, Claimant registered for UC benefits and was 

presumed to be able to work and available for suitable work. Rohde, 28 A.3d at 243. 

Claimant indicated on the Questionnaire that she was unable to work because she had 

“delivered [her] baby prematurely via emergency c-section [at] 27 weeks due to severe 

preeclampsia, pulmonary embolisms[,] and deep vein thrombosis and [she is] 

currently under [a doctors’] care for these illnesses.” (C.R. at 046-047) (emphasis 

added). She further stated that she was not available to work because she was “still 

being treated for these illnesses while on unpaid maternity leave.” Id. (emphasis 

added). Claimant also explained that “[she was] unable to walk long distances, or sit 

or stand for a long period of time without taking a break.” Id. at 051. In so doing, 

Claimant placed restrictions on the type of work that she was willing to accept due to 

her inability to walk long distances and sit or stand for a long time. Rohde, 28 A.3d at 

243. The burden therefore shifted to Claimant, who failed to testify that there was any 

type of work she was able to do or that she had a reasonable opportunity to secure work 

with these restrictions. Id. 

In Wincek v. Unemployment Compensation Board of Review, 439 A.2d

890 (Pa. Cmwlth. 1982) (Wincek II), a fast-food employee informed her supervisors 

that she was pregnant and that her attending physician advised that she engage in only 

sedentary employment. Id. at 891. After considering whether the claimant could 

perform her duties while seated on a stool, the parties determined that the claimant 
12

should take a leave of absence until released from the medical restrictions and then 

return to her job at the restaurant. Id. Thereafter, the claimant applied for UC benefits 

and her application was denied. Id. The claimant appealed to this Court, which 

remanded the matter to the Board to determine, inter alia, whether the claimant’s leave 

of absence was voluntary or involuntary. Id. The Board held an evidentiary hearing 

and determined that because the claimant’s leave was directed by the employer, it was 

involuntary. Id. Notwithstanding, the Board found that the claimant was not 

“available” for work during the leave of absence and, therefore, the Board denied UC 

benefits. Id. The claimant again appealed to this Court. 

Finding the presumption of availability rebutted in that situation, we 

explained:

We have consistently held that the presumption of 

availability “is rebuttable by evidence that a claimant’s 

physical condition limits the type of work he is available to 

accept.” Pizzo v. Unemployment Compensation Board of 

Review, 424 A.2d 1021, 1023 ([Pa. Cmwlth.] 1981). For 

example[,] in Chapman v. Unemployment Compensation 

Board of Review, 414 A.2d 174 ([Pa. Cmwlth.] 1980)[,]

where the claimant’s lung condition limited his job 

availability to “sedentary, clean air endeavors[s]” and in 

Baker v. Unemployment Compensation Board of Review, 

[336 A.2d 671 (Pa. Cmwlth. 1975)], where the claimant’s 

allergies limited her availability to part-time work of a 

sedentary nature, and in Unemployment Compensation 

Board of Review v. Patsy, [345 A.2d 785 (Pa. Cmwlth. 

1975)], where the claimant’s fractured leg limited him to 

sedentary jobs, we held the presumption of availability to be 

rebutted. It was reasonable and in complete accord with the 

decisions of this Court for the [Board] to conclude that the 

presumption was similarly unavailable to the claimant in this 

case.

Wincek II, 439 A.2d at 892 (citations and footnote omitted). 
13

Here, the presumption of Claimant’s availability to work was rebutted by 

the medical restrictions imposed upon Claimant by her doctor due to numerous health 

issues related to her pregnancy and by the restrictions she placed on herself regarding 

the type of work she could perform, namely light duty, because she could not walk, sit 

or stand for long periods of time. 

With presumption of her availability to work rebutted, Claimant had to 

present evidence to affirmatively demonstrate her ability to do some work and that 

there was a reasonable opportunity to secure such work. In Wincek II, we explained:

Once the presumption is rebutted it disappears and has no 

further effect upon the outcome of the case. Following a 

rebuttal of the presumption, a claimant must produce 

evidence that [she] is able to do some work and that there is 

a reasonable opportunity for securing such work. The 

Board’s legal conclusion that it was the claimant’s burden to 

show the existence of local employment opportunities within 

her limitations was not in error. No evidence was introduced 

at the referee’s hearings in an attempt to show the availability

of jobs for which the claimant was suited. Indeed, the only 

evidence on this issue is the claimant’s testimony that her 

inquiries of friends and other establishments failed to 

disclose a single job opening.

Wincek II, 439 A.2d at 892.

As in Wincek II, Claimant offered no evidence to show the availability of 

jobs for which she was suited or of any effort, by her, to join the local labor market by 

searching for jobs within her medical restrictions or to make it known to the labor 

market that she was available to work in light duty from home during the weeks from 

January 22, 2022, to June 25, 2022. Although Claimant testified that she could have 

worked in a light duty job from home, she offered no evidence that she applied for any 

jobs during the relevant period. In fact, the evidence established that to the contrary, 
14

Claimant intended all along to return to work for Employer in June of 2022, once she 

was cleared by her doctor and Employer’s doctor. 

We have held that “an employee who leaves her employment for medical 

reasons may be disqualified from the receipt of unemployment benefits as unavailable 

for work if the claimant commences a medical leave of absence of limited duration 

with the intention of then returning to the former employment.” Wincek II, 439 A.2d 

at 892. In Wincek II, the claimant repeatedly testified that she intended and expected 

to return to work with the employer following the birth of her child, that she so 

informed her superiors, that a position was held open for her and that, on October 2, 

1978, she returned to her former duties. Id. We concluded that “[t]here is adequate 

support for a conclusion that the claimant’s period of unemployment was limited, at 

the outset, to the period of her disability due to pregnancy, that she expected and desired 

to return to her former employment following her confinement, and therefore, that she 

was not during the period of her medical leave, realistically attached to the local labor 

market.” Id. 

Here, like in Wincek II, Claimant testified that she planned to take 

maternity leave for the birth of her child, the record reflects that Employer held her 

position open with the expected return to work date on June 30, 2022, she sought a 

medical release from her doctor before the return date, and she returned to her former 

duties on July 6, 2022. (C.R. at 048, 106, 129.) Therefore, the Board did not err when 

it determined that Claimant was not realistically attached to the local labor market 

during the period of her leave.

In Bogucki v. Unemployment Compensation Board of Review, 421 A.2d 

528 (Pa. Cmwlth. 1980), the claimant informed her employer that due to pregnancy she 

could no longer perform her duties as a cook. Bogucki, 421 A.2d at 529. She requested 
15

lighter work, and upon being told that no lighter work was available, she accepted a 

leave of absence. She was found ineligible for benefits under Section 401(d)(1) of the 

Law, and she appealed. Id. We held that a pregnant claimant who accepted a leave of 

absence because her employer is unable or unwilling to grant her request for lighter 

work during her pregnancy, may be available for suitable work elsewhere and therefore 

cannot automatically be deemed ineligible for unemployment compensation while on 

the leave of absence and awaiting delivery of her child. Id. at 530. The Court 

additionally stated that “[t]he claimant’s testimony and her doctor’s certification, 

neither of which was controverted, showed she was able to do light work and was 

available for any such work when she applied for [UC] in January 1979 and at the time 

of the referee’s hearing in February 1979.” Id. 

Here, unlike in Bogucki, Claimant failed to show through a doctor’s 

certification or her testimony that she was able to do light work and was available for 

such work at the time she applied for benefits. At the time she applied for benefits she 

was on a medical leave of absence due to multiple health issues relating to her 

pregnancy. Further, although she testified that she could have worked remotely, she 

presented no evidence that she had made any attempt to secure such a position. 

In Davis v. Unemployment Compensation Board of Review (Pa. Cmwlth., 

No. 1077 C.D. 2014, filed January 8, 2015),2the claimant applied for UC benefits after 

going on an approved medical leave. Davis, slip op. at 1. On her application, the 

claimant indicated that she was not able to work because of her injuries. The claimant 

also indicated that she was not available for work until her injuries and pain subsided. 

Id. The UC Service Center found the claimant was ineligible for benefits under Section 

2 We cite Davis for its persuasive value in accordance with Section 414(a) of this Court’s 

Internal Operating Procedures. 210 Pa. Code §69.414(a).
16

401(d)(1) of the Law. Id. During the appeal hearing, a referee asked the claimant to 

clarify the answers on her application for UC benefits, specifically, whether she was 

able and available to work and, if so, why she answered no on the application. Id. at 2. 

The claimant responded that she did not know how to fill out the application, she was 

available to work but not at her original job, and her employer did not provide her with 

a type of work she was available to do. Id. The referee concluded that the claimant’s 

testimony directly conflicted with her application for UC benefits, and the claimant did 

not satisfy her burden under Section 401(d)(1) of the Law. On appeal to the Board, the 

Board affirmed the decision concluding that although the employer did not provide 

limited duty for the claimant’s position, the claimant did not offer sufficient credible 

medical documentation or testimony during the hearing regarding her ability to work 

in a limited-duty capacity. Id. at 3. Upon review, this Court stated that the claimant 

herself had rebutted the presumption that she was able and available for suitable work. 

Id. at 4. We explained that even if the claimant indicated on the application that she 

was not able to work because she was confused and believed that she was responding 

to an inquiry as to whether she could perform her preinjury job with employer, the 

burden was on her to produce sufficient evidence at the hearing that she was ready, 

willing, and able to accept some suitable work within her medical restrictions. Id.

(citations omitted). We concluded that based on the Board’s credibility determination, 

the claimant did not meet her burden under Section 401(d)(1) of the Law because the 

“claimant’s uncorroborated testimony was insufficient to establish that she was able 

and available for some type of work within her medical restriction.” Id.

As in Davis, Claimant stated on her application for the UC benefits that 

she was unable and unavailable to work because she suffered from severe 

preeclampsia, pulmonary embolisms, and deep vein thrombosis and was unable to walk 
17

long distances, sit, or stand for long periods of time without taking a break. At the 

hearing, Claimant testified that she was confused as to how to answer the 

questionnaire’s question regarding her ability and availability to work. Claimant also 

did not provide any medical documentation regarding her ability and availability to 

perform some type of work. Claimant also testified that at some point during the 

maternity leave, she would have been able to work in a light-duty position if she could 

do so from home, but Employer did not offer this accommodation. The Referee found 

Claimant’s testimony credible in this regard; however, the Referee concluded that 

Claimant did not show that she was available for light-duty work because she did not 

prove her intent to work from home in a light-duty position during said period between 

January 22, 2022, to June 25, 2022, and did not indicate when she could perform lightduty work. The Board affirmed the Referee’s determination and concluded that 

Claimant’s testimony rebutted the presumption that she was available to work due to 

illness, injury, or disability, and that she failed to show she had a reasonable attachment 

to the labor market as required by law. Neither the Referee nor the Board based its 

decision solely on Claimant’s answers to the Questionnaire, but rather based it on 

Claimant’s testimony. As in Davis, Claimant, herself, rebutted the presumption that 

she was able and available for suitable work making her ineligible for UC benefits. 

Even though Claimant testified that she was available to work from home during the 

period between January 22, 2022, to June 25, 2022, while she was on her medical leave 

of absence, Claimant offered no evidence to show the availability of jobs for which she 

was suited or of any effort, by her, to join the local labor market by searching for jobs 

within her medical restrictions or to make it known to the labor market that she was 

available to work in a light duty job during the weeks from January 22, 2022, to June 
18

25, 2022. Therefore, the presumption that Claimant was able and available for work 

was rebutted. 

V. Conclusion

Accordingly, we conclude substantial evidence supports the Board’s 

decision that Claimant was not able to work and available for suitable work under 

Section 401(d)(1), and we affirm the Board’s order mailed January 26, 2023, which 

affirmed the Referee’s decision deeming Claimant ineligible for UC benefits.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lakeisha Whitehurst, :

Petitioner :

v. : No. 309 C.D. 2023

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 24th day of June, 2024, the order of the 

Unemployment Compensation Board of Review, mailed January 26, 2023, is hereby 

AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge