Sunday, August 14, 2011


This is another old Appeal Board case but again illustrates another aspect of the capability issue - here the claimant was unable to work at claimant's regular occupation due to a disability but was able to perform other work - again this case is from the NYS UI AB Electronic Interpretation Service:

"Appeal Board Case No. 9745-43


Physical inability to perform usual work as a machine presser did not disqualify a claimant who was ready, willing and able to perform sedentary work which reasonably was obtainable.

Referee’s Decision: Initial determination suspending benefits for incapability is sustained. (7/31/43)

Appeal By: Claimant.

Findings of Fact: Prior to October 27, 1942, claimant, a veteran of the first World War, was employed as a machine presser. On the last mentioned date claimant suffered a heart attack, as a result of which he was hospitalized in the United States Veterans Hospital for eleven weeks. After his discharge on January 16, 1943 claimant was advised to rest for two months before seeking any employment. At the time of his discharge claimant’s condition was described by the United States Veterans Hospital as follows: "Marked limitation of physical activity." "Ordinary physical activity markedly restricted." Claimant’s heart condition has existed since 1931. On April 15, 1943 claimant filed an application for employment and for unemployment insurance benefits. At the time of the filing of the application for benefits, claimant’s private physician advised him that he was capable of doing work of a sedentary nature. On May 19, 1943 the local office made an initial determination holding that claimant was incapable of employment and disqualified him as of the date of the filing of his application for benefits. Claimant contested the determination and demanded a hearing. The referee sustained the initial determination and the claimant appealed.

Appeal Board Opinion: The sole issue on this appeal is whether or not claimant was incapable of employment within the meaning of the law. The referee ruled the claimant was not capable. We do not agree with the referee’s decision. We have said that capability of employment means the ability to perform work such as there may be a reasonable opportunity of obtaining. The referee predicated his decision on the grounds that claimant’s limited ability and capacity for physical exertion made it impossible for him to obtain employment in the labor market. In his statement on appeal claimant indicated his willingness to accept employment as a watchman. Obviously, such employment does not require a great physical exertion. Similarly, there appears to be no reason why claimant cannot be placed as a timekeeper, checker, or in work of a similar nature. On the whole, we believe the claimant is capable of performing some useful work for which there is a demand in the labor market.

Decision: Claimant was capable of employment within the meaning of the Unemployment Insurance Law. The initial determination of the local office is overruled. The decision of the referee is reversed. (10/25/43}"

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