June 24, 2002 
Dianne Foxwell 
Re: Foxwell v. Wal-Mart, C.A. No. 01A-08-007 
Date Submitted: April 3, 2002 

Dear Ms. Foxwell: 

This is the Court’s opinion in the pro se appeal of Diane Foxwell ("Claimant") 
from the decision of the Unemployment Insurance Appeals Board ("Board") dated August 8, 
2001. The Appeals Referee denied the Claimant’s request for unemployment benefits under 19 
Del. C. § 3315(1) because she found that Claimant voluntarily resigned from her employment at 
Wal-Mart without good cause attributable to such work. The Board reversed and modified the 
Appeal Referee’s decision, finding that she had just cause to voluntarily leave her employment, 
but denying her benefits nonetheless pursuant to 19 Del. C. § 3315(8) because she was medically 
unable to work. 

I. FACTUAL HISTORY & PROCEDURAL POSTURE

The Claimant began working as a grocery stocker at Wal-Mart on September 15, 2000. 
She claimed she was injured while lifting a pallet at work on March 7, 2001. She went to see Dr. 
Sternberg at the end of March because she continued to experience pain. On April 10, 2001, Dr. 
Sternberg put Claimant on bed rest. On May 4, 2001, he limited her to sedentary duty at work. 
He specified that the Claimant could only perform certain tasks, such as lifting less than ten 
pounds maximum, and occasionally lifting and/or carrying such articles as dockets, ledgers, and 
small tools, and sitting most of the time. He also informed her that she could not do her regular 
work duties as a grocery stocker as she described them to him. She was prohibited from 
prolonged standing. In fact, she could only stand for five minutes at a time for a total of thirty 
minutes per day. Dr. Sternberg also specified the Wal-Mart jobs that the Claimant could do with 
her new restrictions: markdown clerk, fitting room attendant, and telephone operator. 
On May 9, 2001, the Claimant returned to work. Because of her restrictions, Wal-Mart 
gave her a new job of overnight clothing scanner with an electronic, hand-held scanner. She used 
an electric wheelchair to perform her job, and was able to complete the job. However, when she 
attempted the next night to use the electric wheelchair to scan items, the assistant manager 
informed her that she had to use a regular wheelchair instead. The reason for the change was that 
Wal-Mart needed to charge the electric wheelchair overnight for their customers to use the next 
day. 

Although she felt it would be inconvenient for her, the Claimant switched to the regular 
wheelchair and tried to work for about an hour. She claimed she could not scan while using her 
arms to wheel the wheelchair around. She refused to use her feet to move the wheelchair because 
her doctor had not included foot movement in his list of permitted sedentary movements. The 
employer representative suggested that Wal-Mart could attach a basket to the regular wheelchair 
so that Claimant could leave the scanner in the basket while she moved around, and the Claimant 
agreed. However, she left work immediately thereafter. 

The Claimant filed for unemployment benefits on May 27, 2001. The Claims Deputy 
decided on June 8, 2001 that Claimant did not qualify for unemployment benefits, and Claimant 
appealed. On July 2, 2001, the Appeals Referee affirmed the decision of the Claims Deputy that 
the Claimant left her job voluntarily without good cause attributable to such work under 19 Del. 
C. § 3315(1), especially since the employer offered to accommodate her reasonably by giving her 
the regular wheelchair and the basket. 

On August 8, 2001, the Board reversed and modified the Referee’s Decision: 
The Board accepts as credible claimant’s testimony that she was not able to do the 
job, with the manual wheelchair, without great difficulty. Thus, the Board finds 
that, under the circumstances, claimant had just cause to voluntarily leave her 
employment. However, the Board also finds that, based upon the medical 
evidence and testimony, claimant was not medically able to do any of the 
positions available with the employer.
 
The Board concludes that claimant is disqualified from the receipt of benefits 
pursuant to 19 Del. C. § 3315(8), which provides that an individual shall be 
disqualified from benefits where unemployment is caused by the "individual’s 
inability to work." 

Pursuant to 19 Del C. § 3323, the Claimant submitted a pro se appeal to the Superior 
Court. 

II. STANDARD OF REVIEW 

The Supreme Court and this Court have repeatedly emphasized the limited appellate 
review of the factual findings of an administrative agency. The function of the reviewing Court 
is to determine whether the agency’s decision is supported by substantial evidence. Johnson v. 
Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 
686, 688 (Del. 1960). Substantial evidence means such relevant evidence as a reasonable mind 
might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 
636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 
1986), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, 
determine questions of credibility or make its own factual findings. Johnson v. Chrysler, 213 
A.2d at 66. It merely determines if the evidence is legally adequate to support the agency’s 
factual findings. 19 Del. C. § 3323(a). 

III. DISCUSSION OF LEGAL ISSUES 

The Court must discern whether the Board had substantial evidence to find that Claimant 
was precluded from benefits because she was "unable to work" under 19 Del C. § 3315(8).2 In 
Petty v. University of Delaware, 450 A.2d 392 (Del. 1982), the Supreme Court held that the 
Claimant, unable to perform her custodial duties because of her pregnancy, was disqualified from 
unemployment benefits because she was not able and available to work based on her medical 
restrictions and her relevant training and experience. Id. at 395. This remains true even if 
Claimant is medically able to do work she is not necessarily qualified by education or training to 
perform. See Briddell v. Dart First State, Del. Super., C. A. No. 01A-06-008, Vaughn, J., 
(ORDER)(March 28, 2002)(holding that a showing that a person is ready for sedentary, light duty 
work is not necessarily sufficient by itself to establish that the person is "available for work" for 
purposes of unemployment compensation). 

The issue is whether any of the three jobs which the Claimant was permitted to do with 
her restrictions were available. The only one that was available was the "markdown clerk" (if the 
scanning job could be considered to be such) and Claimant was unable to perform this without 
great difficulty. Thus, two of the jobs were unavailable and she was unable to perform the third. 
Consequently, the Claimant was unable to work, and the Board correctly concluded that the 
Claimant is therefore barred from receiving benefits under 19 Del. C. § 3315(8). 

IV. CONCLUSION 

In consideration of the foregoing, this Court affirms the Board’s decision. 

IT IS SO ORDERED. 

Very truly yours, 
T. Henley Graves
oc: Prothonotary