Monday, March 5, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

More from the "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - which sets forth the guiding rule the DOL bases its determinations - this discussion is on Voluntary Separation For Health Reasons and I have emphasised certain passages (also another review letter is referred to and will be posted here later):

"QUIT DUE TO HEALTH REASONS

It is well established that a claimant can have good cause to leave employment harmful to his health, provided no other remedy is feasible. However, the question of whether a doctor advised a claimant to leave, while important, is not always controlling. Such advice is simply one piece of evidence. A claimant may establish good cause for leaving a job due to health reasons, even though his/her doctor did not advise quitting. Whether a health condition or a danger to the claimant’s health actually existed, and whether such health condition was caused by or would be exacerbated by continued employment must be determined by examining all of the facts and circumstances, not solely relying on whether a claimant was specifically advised by a doctor to leave his job. Applications of these principles are discussed in several case summaries below. However, a more complete discussion of the topic of medical evidence can be found in Review Letter No. 4-67, MEDICAL EVIDENCE, re-released March 2009.

In some circumstances the conditions of the job are easily shown to be harmful. Several employees of a thermometer factory developed headaches, dizziness, and other symptoms that were eventually shown to be typical of mercury poisoning. Their complaints to the NYC Department of Health resulted in a temporary closure of the factory by order of the Department due to impermissible levels of mercury vapor in the air in several areas in the factory. Workers who quit after learning of these facts were held to have quit with good cause regardless of whether they had any symptoms or had consulted a doctor. Their fears that continuing in that employment would be harmful to their health were genuine and reasonable.

A recent case concerned a claimant who developed a condition known as deep vein thrombosis. His treatment for the condition was well documented. The doctor advised the claimant to avoid standing for long periods of time. However, since the claimant’s job required long periods of standing, it did not matter that the doctor did not specifically advise the claimant to quit. Good cause was established when the facts made it clear that continuing in that job was harmful to this claimant’s health due to his specific condition. In a case such as this, after determining a claimant to be eligible for benefits, the task of the Unemployment Insurance Division is to assist the claimant in finding a different occupation by referring him for evaluation and counseling. (See Special Bulletin A 710-23 Search for Work, Section 3, para. 4, November 17, 1981)

Appeal Board 542700 concerned a claimant whose chronic asthmatic bronchitis was worsened by various allergens and irritants in the employer’s workplace and who, as a result, had arranged to work for the employer from her home. She ultimately quit when the employer’s requirement that she attend training at the employer’s premises caused her to become ill. Although a doctor did not advise the claimant to quit, the Appeal Board decided that “…the claimant had satisfactorily established her long term medical disability without the need for current corroborative medical documentation. Accordingly, we conclude that the claimant quit her job for a compelling medical reason…”

A claimant was held by the Appeal Board to have left with good cause when her doctor advised leaving the job due to heart palpitations caused by an increased work load and the harassment of her supervisor, who the Board found “…regularly berated, yelled at and criticized the claimant.” (AB542712) Significantly, the employer failed to reduce any of the claimant’s oral complaints to writing as their Human Resources policy required, nor did the employer make any effort to address her complaints about the supervisor’s behavior.

After an absence of several days due to an episode of gout, a security guard informed his employer that he was ready to return to work. At the employer’s request he forwarded to the employer medical documentation obtained at the onset of his illness explaining the reason for his absence. When the employer demanded more recent documentation releasing him to return to work he was unable to comply promptly due to the fact that he had neither medical insurance nor a primary care physician. When it was clear to him that he would be unable to submit the required documentation by the deadline, he left his job rather than face certain dismissal. He was held to have left with good cause (AB541982).

When a doctor explicitly leaves the decision to quit up to the claimant, there can still be a finding of good cause. The Appeal Board recently ruled in AB 543291that medical evidence indicated that claimant experienced a high risk pregnancy due to a history of hypertension. Because she was pregnant, she was unable to take her usual medications for migraines, or medication for lumbar pain. In the month prior to her separation, she spoke to her physician about the stress she was under at her job. The physician advised her to consider stopping work earlier than she had intended if the stress became too great. During the next month she felt increasing stress due to her employer’s assigning additional duties to her and left her job. A claimant’s subjective judgment regarding the effect of stress is not generally sufficient to establish good cause for quitting. But in this case there was substantial medical evidence supporting the claimant’s decision, as well as evidence establishing the stressful nature of her work which, taken together, established good cause for leaving.

In another recent decision, AB 543446, the Appeal Board addressed the case of an asthmatic claimant whose complaints to her employer with respect to her co-workers’ smoking in the office went unheeded for some time. Ultimately, the claimant was forced to quit. The Board, relying on an Appellate Division decision, (Matter of Halpern, 265 AD2d 702), stated that “…fear for one’s health caused by cigarette smoke in the workplace constitutes good cause to quit, even without proof of allergy to cigarette smoke, or medical advice to quit.”

By contrast, there have been cases in which the doctor statement was deemed to be unacceptable as evidence supporting good cause to quit. In AB 513240, the Board sustained a disqualification, finding that the doctor’s note produced by claimant was dated three months after she had quit. The Appeal Board concluded that her resignation was not based upon a doctor’s diagnosis, but instead upon her own opinion that her job was causing her stress.

Thus, medical evidence must be evaluated for credibility and connection to the action of quitting just as any other evidence must be. Good cause for quitting due to health reasons can be established by evidence of a claimant’s medical history and chronic conditions. It need not be based on recent advice from a doctor."

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