Entry_Date: 100303

 Appellant: Virginia C. Webster 

 Appellee: Oklahoma Employment Security Commission; Board of Review of Oklahoma Employment Security Commission and the City of Broken Arrow

 Jurisdiction: Court of Appeals of Oklahoma, Division No. 3

 Hearing_Date: August 22, 2003 

 Text_of_Rule: 
( Buettner ) 
( Tulsa County - David L. Peterson ) 
Not
 Published
 
AFFIRMED 
Virginia C. Webster, Broken Arrow, Oklahoma, Pro se 
Teresa Thomas
 Keller, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Appellee Oklahoma
 Employment Security Commission 
Michael R. Vanderburg, City Attorney, CITY OF BROKEN ARROW, Broken
 Arrow, Oklahoma, For Appellee City of Broken Arrow 
Opinion 
1/ Virginia C. Webster worked as a
 paralegal for the City of Broken Arrow. Her employment was terminated because she was unable to
 perform at expected standards. She applied for unemployment benefits through the Oklahoma Employment
 Security Commission (OESC), but her request was denied because of her doctor's statement to the
 effect that her previous brain trauma rendered her incapable of working at any job. In order to
 qualify for unemployment benefits, a person must, inter alia, be unemployed through no fault of her
 own and be able and available to work. Ms. Webster was not able and available to work so
 unemployment benefits were properly denied. 
2/ The Oklahoma Employment Security Act of 1980, 40 O.S. 1-101 et seq. provides for unemployment compensation for a limited period of time for certain employees.
 An otherwise qualified individual must be able to perform work duties, and seek and accept work in
 keeping with his education, training, and experience. 40 O.S. 2-205A
 (1991). 
3/ Ms. Webster followed the administrative procedure set forth in the Act. She applied
 for unemployment benefits. She was conditionally approved, but upon learning of her total
 disability, her application was denied. She appealed that decision and was afforded a telephone
 hearing. The hearing officer (appeal referee) denied her application. Ms. Webster appealed that
 decision to the Board of Review which affirmed the referee's decision. She then sought judicial
 review in the District Court of Tulsa County. The District Court upheld the administrative decision
 and she now appeals to this Court. See 40 O.S. 2-503 et
 seq. 
4/ Like the District Court on review, our review is confined to questions of law if the
 Board of Review's findings of fact are supported by evidence. 40 O.S. 2-610
 (1991). 
5/ Ms. Webster's undisputed evidence was that she was medically determined to be
 completely disabled from engaging in any employment. Such, in fact, was the basis of her social
 security benefits claim, which, according to her brief, she has begun receiving. It is also the fact
 that supports denial of her unemployment claim. 
6/ With respect to questions of law, Ms. Webster
 first argues that the Act is unconstitutional as applied to disabled people and violative of the
 Americans with Disabilities Act. Webster, however, set forth facts of her total inability to work.
 Webster is not a "qualified individual with disability" under 42 U.S.C.A. 101(8) and thus the ADA is
 inapplicable. No amount of accommodation, much less reasonable accommodation, by an employer would
 help. The Oklahoma Employment Security Act does not unlawfully discriminate against disabled people,
 when its rationally based purpose is to help those who are able to work.1 
7/ Next, Ms. Webster
 argues that her private medical information should not have been a condition of receiving
 unemployment benefits. However, it is the claimant's burden of proving ability and availability to
 work. She was the one who put her medical condition at issue. There is no error on this account. 

 8/ At the beginning of the hearing, the appeal referee noticed that the tape recorder was not
 working. He made that announcement and then stated on the record what had transpired such as
 announcing the case, the oath being given, and marking of exhibits. Ms. Webster restated certain
 comments she had made before it was noticed that the tape recorder was not working. There is no
 error with respect to the record of the hearing. Ms. Webster also believes there was legal error
 because OESC was not a party attending the hearing. As we have stated, however, she had the burden
 of proof and she did not present any set of facts in her favor. The notice of the hearing informed
 her that witnesses could be important and what she needed to do to subpoena witnesses. She
 apparently did not subpoena any witnesses and therefore cannot complain now. 
9/ Related to
 conduct of the hearing, Ms. Webster references the Oklahoma Administrative Procedures Act, 75 O.S. 308(A)
 (1991) et seq. The right to cross examination only arises when a witness has testified. There were
 none presented for Ms. Webster to cross-examine. She also complained about a lack of findings of
 fact and conclusions of law, but those were clearly stated in the orders. There is no error in the
 conduct of the hearing. 
10/ "In reviewing a trial court order in a judicial review proceeding,
 our task, like that of the trial court, is to determine if the administrative agency's final order,
 upon review of the entire record, is predicated upon substantial evidence and whether the order
 resulted from procedures which complied with the law and were free of prejudicial error." Barnes v.
 University of Oklahoma, 1995 OK CIV APP 14, 2, 891 P.2d 614, 615. Our review of the record supports
 the finding that Ms. Webster did not qualify for unemployment benefits and that the determination
 was not legally flawed. We therefore AFFIRM the order. 
ADAMS, P .J., and JOPLIN, C.J., concur. 
(FOOTNOTES): 
1 Ms. Webster has likewise failed to demonstrate the applicability of the
 Rehabilitation Act of 1973, 29 U.S.C.A. 701 et seq. 

 Disposition: ** MANDATE ISSUED - OCTOBER 2, 2003 **

 Citation: Unpublished Opinion No. 97,945 (2003)