Thursday, March 8, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another discussion of credibility can be found in "REVIEW LETTER No. 4 - 6 Revised March 2009 - MEDICAL EVIDENCE":

"MEDICAL EVIDENCE


Introduction

One of the more frequent reasons given for quitting or refusing a job is the harmful effects of a worker’s health. Medical questions also may be involved when there is a loss of employment due to poor attendance.

Should decisions in these cases rest solely upon whether or not a medical certificate can be produced? What significance should be attached to the presence or absence of such a document? And if medical information is secured, how should it be evaluated? This Review Letter is concerned with these questions.

Lack of medical evidence

Even with today’s medical care programs, there may be cases of voluntary leaving of employment for reasons of health where no doctor has been consulted. Although this may ordinarily be a fact unfavorable to a claimant, it is not conclusive, and may be overcome in some cases by the weight of the evidence. Here are two Appeal Board cases which illustrate the importance of considering surrounding circumstances:

Claimant, age 33, quit her job as a meat packer in Buffalo in December, 1964 after years, explaining to her employer that she was moving with her parents and sister to Niagara Falls, making it difficult to commute, although public transportation was available to meet her needs. Upon filing for benefits, she stated that although she had always worked in the meat cooler area, in a temperature of 40 degrees, she began experiencing in the summer of 1964 stomach cramps which she attributed to the low temperature, although she never complained of this to anyone and never sought medical treatment for them. She further stated that the cramps ceased after she quit. Her attendance record was excellent. In sustaining a disqualification for voluntary leaving the Board reasoned:

“. . . we reject as incredible the claimant’s contention of physical
discomfort caused by the temperature in which she worked. For
most of her period of employment she was unaffected thereby.
Suddenly, at the time when the family is contemplating a removal
to a more distant residence, claimant commences to experience
stomach pains and suffers them, without complain to the employer
or a physician, until in December, the move is imminent and she
leaves her job, whereupon they disappear with equal suddenness.”
(A.B. 122,390; not reported)

Claimant, age 53, accepted employment with a meat product manufacturer as the operator of its smoke house. He has experience in this line, although for the last 19 years he had worked as a maltster ( a skilled occupation) in a brewery. The duties of his new job included lifting over his head containers of bologna weighing up to 70 pounds. During the day he had to make many visits to the smoke house, where the temperature rose to as high as 220 degrees, causing him to perspire excessively and to break out in a rash. In addition he was required to enter the cooler at the end of the day which gave him chills. He quit after a week and a half, his weight having dropped from 180 to 165 pounds, but without consulting a doctor. Despite the lack of medical evidence, the Appeal Board found credible claimant’s contention that the employment was detrimental to his health, and overruled a disqualification for voluntary quit (A.B. TEC-254; not reported).

Comparing the above decisions, it may be noted that because of the existence of other relevant evidence, the absence of a medical certificate was significant in the first case but not in the second. Such factors as age, training and experience, length of employment, claimant’s recitation of the symptoms, and other possible reasons or motives, may tip the scales either way.

Chronic ailments

A claimant who alleges he quit because if was aggravating a chronic ailment may sometimes submit medical evidence which confirms the existence of the condition but indicates that he was not specifically advised to stop performing the work in question. The resolution of this type of case may require, in addition to good judgment on the part of the claims examiner, accurate information on the duties and conditions of the job. Thus, although they were not advised to quit their jobs, the following claimants were held by the Appeal Board to have left with good cause (Not reported in the Service):

A postal clerk with chronic asthma who was required to work under conditions of excessive
heat, dust and high rate of speed. (UCFE-720)

A runner for a brokerage firm with osteoarthritis of the right knee (88,357)

A tugboat deckhand with a duodenal ulcer who was required to work irregular hours and
for continuous periods of up to 16 hours. (90,288)

A sewing machine operator suffering from high blood pressure and obesity who took a job trimming onions and left after a month because she could not get accustomed to the odor of onions which caused nausea and vomiting. (130,192)

In a recent misconduct case, AB 542498, the Board found that because the claimant’s illness was due to a recurrent chronic condition (asthma & bronchitis) which the claimant knew how to treat with her previously prescribed medications, it was not significant that she did see a doctor on the day of her last absence.

Similarly, the Board has held refusal of employment to be with good cause in the following cases, where the claimant’s affliction was chronic, although there was no recent medical treatment or specific advice to avoid such work:

A sales clerk who refused referral to such work in the basement of a department store on the ground, based on a previous experience, that the dampness would aggravate her arthritic back ailment. (Index 1245 #5)

A laborer in a carborundum plant who because the dust aggravated his asthmatic
condition, secured temporary work outdoors, and later refused re-employment in
the plant for the same reason he quit. The Board stated:

“It may well be that the safeguards against dust in the employer’s plant satisfy necessary standards but we are dealing with a subjective situation which makes work for this claimant, in an atmosphere which has some dust, unsuitable for him . . .” (A.B. 120,306; not reported)

That judgmental evaluations can also lead to conclusions which are adverse to the claimant is illustrated in the recent case of waitress who quit her job after one month alleging that the work aggravated a back condition which she incurred in 1962. She submitted a medical statement indicating that she suffered from a long-lasting lumbar sacral strain but that she did not receive any medical treatment for this condition from 1962 until late January 1966, about four months after she left her job. In deciding that the claimant left her employment without good cause, the Board noted these widely separated dates and concluded that “the medical evidence is insufficient to establish a casual relationship between claimant’s alleged back condition and her leaving of her employment.” (A.B. 128,902; not reported)

The effects of commuting

Just as the absence of medical advice to quit is not conclusive, so the existence of such advice must be considered in the light of other evidence. This is demonstrated in cases where there is a voluntary quit supported by the advice of a physician to stop traveling to work. Here are two examples:

Claimant, a secretary, was employed by a public relations firm in New York City for seven years, during the last two of which she commuted from her home on Long Island, with a travel time of almost two hours each way. In the fall of 1961, claimant was treated for influenza, and informed her supervisor that she intended to resign because her doctor advised her to discontinue commuting. However, since it was the busy season, she continued on the job until the end of January, 1962. She presented to the local office as statement from the doctor confirming this advice. In sustaining a disqualification for voluntary quit, the Board said:

“The medical certificate submitted by claimant fails to indicate
the basis for any advice rendered by the physician with respect
to the avoidance of travel. It is significant that claimant
continued in the employment for several months after she recovered
from the illness for which she was treated by the physician.” (A.B. 93,498;
not reported)

In another case, a clerk-typist residing in Yonkers quit her job in Manhattan after six years because she felt the traveling was affecting her health. In the last three months of her employment, her travel had increased because the firm moved from mid to lower Manhattan, although the travel time still did not exceed one and one-half hours. Her doctor certified “patient feels that riding in trains and subways causes her to have frequent colds due to drafts and temperature changes” and he further stated “avoidance of commutation advisable.” The Appeal Board nevertheless found that claimant left her job without good cause, noting that claimant’s attendance record was satisfactory and the travel time was not excessive, and concluding:

“There is insufficient proof that claimant was compelled to leave her
job for reasons of health. The most that can be said is that claimant’s
doctor agreed with claimant that she might feel better if she were not
required to commute . . . . The same might be said of practically every
employed person who commutes any distance (A-750-1233; Index 1655 #5)

Pressures of the job

A person may state that he was compelled to leave his job because he could no longer cope with its physical requirements or the pressures and tensions stemming from the attendant responsibilities, workloads or deadlines. Ordinarily, there is no reason to question the evidence which he presents concerning the care, opinion and advice received from his physician. However, there may be times when such questioning is warranted, as shown in the following recently decided cases:

Claimant, age 66, told the local office he sold his 50% stock interest in a restaurant corporation to his nephew, and resigned as secretary-treasurer and manager in March 1966, because he could not get along with the president, the other 50% owner. He further stated he was not sick or under doctor’s care and was not advised to leave. However, at the referee (now called administrative law judge) hearing he stated the repeated arguments made him so nervous that he consulted a doctor in October 1965 who advised him to do other work. He presented a note to this effect, dated October 1965, which he admittedly obtained two weeks before the hearing of September 1966.

In sustaining a disqualification for voluntary quit the Board said in part:

“We reject claimant’s testimony that he was directed to quit his job by his
physician. When interviewed at the local office claimant denied being
ill and likewise denied that he had been advised to sell out his shares of
stock in the corporation . . . . We conclude that claimant’s statement at
the local office interview was true and that his later version was not.”
(134,916; not reported)

In May 1966, claimant, a bank clerk, asked for permission to extend her two week paid vacation in July by an additional two weeks without pay in order to accompany her daughter and son-in-law on an extended trip. Despite denial of her request, she went on the trip, and during the third week sent a telegram stating that she was taking the extra time on the advice of her doctor. She was thereupon terminated. She presented to the local office a medical certificate (form ES 340) indicating a single visit to the doctor, on July 19, 1966, four days before the start of her vacation, and stating that a month’s rest was recommended because of “asthenia” (weakness, debility, exhaustion). Nevertheless, a disqualification for voluntary quit (provoked discharge) was imposed which was sustained by the Referee and not appealed further. In his decision,the Referee indicated that not only did claimant fail to inform her employer of her her alleged medical need before she started her vacation, but also that:

“The medical proof falls short of establishing more than personal
reasons for an extended vacation; it is difficult to accept claimant’s
contention that what she wanted was rest and that she got it by
traveling about in the western part of the country with her daughter,
her son-in-law and three small children . . .” (Referee #60-467-66;
not reported).

Contradictory information

Sometimes the medical certificate contains a diagnosis, a recitation of treatment dates, or a statement of the advice given to the patient which conflicts with statements made by the claimant to the local office. The certificate may even conflict with other certificates from the same or other physicians. Such a situation often can be used to advantage when attempting to arrive at the “ultimate” facts, as shown in the following cases:

A sewing machine operator contended that she left her job on October 5, 1964 because the conditions of employment, particularly arguments with co-workers, caused her to suffer nervous spasms, for which she was under medical treatment. There was also evidence that prior to quitting she had protested to her union representatives because she believed she was not receiving the correct incentive bonus payments, but was advised by them to remain on the job. She produced a certificate from her physician stating:

“In October 1964 I advised her to leave her position of work. She was working under conditions of great tension, which gave her severe intestinal spasms.” In sustaining a disqualification of voluntary quit the Board said:
“The medical certificate which claimant produced does not establish
that claimant’s health suffered any detrimental effect because of the
conditions of employment. It is significant that claimant’s physician
stated that he had advised claimant to leave her job in October,
whereas claimant did not see the physician during that month until
she had already become unemployed at least two weeks prior to the
time of such visit . . . The entire record tends to indicate that
claimant left the job because she was dissatisfied wit the fact that the
employer had instituted the incentive-bonus plan . . .” (A.B. 119,288;
not reported)

A stock brokerage clerk who resigned after six years on February 17, 1965 for “medical reasons” submitted medical statements indicating that she had been treated for an upper respiratory virus infection from December 14, 1964 to January 20, 1965 (discharged cured) and that she suffered from general weakness and anemia and has been advised to resign in order to get more rest and improve her general health. She filed for benefits on March 1, 1965. However, the employer’s records indicated that she was absent from December 1 to 4, 1964 for cystitis and on February 16, 1965 for a virus, and was not absent from work for any reason from December 14, 1964 to January 20, 1965. The Appeal Board held the quit to be without good cause, stating:

“The credible evidence indicates that whatever may have been
claimant’s reason for leaving her employment, it was not in
the interest of protecting her health. The medical statements
are of little probative value because, as recognized by the referee,
they are inconsistent, both with each other and with the
employer’s attendance records . . .” (A.B. ???,189, not reported)

Claimant, a wirer and solderer for a manufacturer of electronic devices, was discharged on April 13, 1962 because of absence that day despite prior warning about her poor attendance. Her excuse for that last absence was that she had to take her daughter to the doctor. However, the doctor submitted a medical certificate indicatingthat neither claimant nor her daughter visited his office during the entire month of April. The Board, therefore, rejecting claimant’s excuse, concluded that the absence was for non-compelling reasons and sustained a disqualification. (A.B. 93,119; not reported).
Possibility of reassignment

In 1962, the Appeal Board considered the case of a floor man for a wire and cable manufacturing company who quit his job after three weeks telling his employer that he had another job. When he filed for benefits he stated that the true reason was that he suffered from claustrophobia and could not work in a factory. When he applied for the job he filled out a detailed medical questionnaire in which he stated that he had no prior history of mental illness, which was not tue, since he had been under medical care for psychoneurosis for several month just prior to this job. Since the employer reported that had the claimant presented his problem, he would have been transferred to outside employment, the quit was held to be without good cause (A.B. 93,411, not reported in the Service)

This case points up the necessity for finding out whether a claimant, who was no longer able to perform his assigned tasks or whose health was being adversely affected by his work, sought other avenues of solution instead of quitting. It would also be important to determine whether such efforts might have been successful, rather than futile gestures.

Possibility of a leave of absence

The principle that a claimant does not have good cause for voluntary leaving unless he had explored all other alternatives includes asking for a leave of absence where the ailment or disability is of a temporary nature. Such a circumstance was at issue in AB 493468 concerning a cashier for a retail chain of stores who left employment due to pain caused by a herniated lumbar disc. The period of claimant’s disability was about two months, and the employer indicated that they would have offered her physically suitable work as a greeter, or a leave of absence. However, the claimant never asked. Instead she stayed out of work for a while and then resigned. The Board, finding that her actions lacked prudence, held her subject to disqualification for voluntary leaving without good cause.

Denial of a Reasonable Accommodation or Leave Request

The concept of “reasonable accommodation” developed in the period since the first release of this publication in 1967. It is defined as: “…any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.” USDOJ (Department of Justice) If a claimant alleges that his or her employment loss related to physical restrictions with respect to duties or working conditions, and that the restrictions were caused by a permanent or temporary disability, it is necessary to establish whether convincing evidence of these restrictions exist and whether such evidence was presented to the employer. Loss of employment in such circumstances is not at all uncommon as in the following cases:

A fire safety director for a hotel, able to work only part-time while recovering from kidney surgery, was held to have had a compelling reason for failing to return to work as the employer insisted he work full time and failed to explain why his request could not be granted (AB 540711).

A front desk clerk for a hotel requested permission to sit while on duty in order to relieve occasional dizziness brought on by her pregnancy. Although the employer knew the claimant was pregnant, her request was denied. The Appeal Board found it significant that the employer presented no evidence to support their assertion that claimant was informed that she must submit a doctor’s note in order to obtain the requested accommodation. The employer’s refusal to provide an accommodation for claimant’s temporary disability gave the claimant good cause to leave (AB 542082)

Conclusions

When a claimant states he quit or refused a job for reasons of health, he should be questioned to find out whether he is or has been under medical care. However, this does not rule out the possibility of denial of benefits despite such care, or payment of benefits in the absence of such care, when other evidence is considered.
The probative value of a medical certificate should be weighed in the light of the circumstances of the case. For example, it may contain, instead of a diagnosis, a description of claimant’s complaint, or it may be merely a repetition of claimant’s feelings regarding the cause of his ailment rather than a confirmation of them. Also, it may contain advice which is not obvious from the diagnosis, yet with no basis given for such advice.

A medical certificate may fail to support, and may even refute, a claimant’s contentions. For example, the diagnosis (estimate of the future course of the ailment), treatment dates and advice given may be at variance with the information supplied by the claimant. There may be a lack of correlation with the claimant’s job attendance record. Or the medical visit and treatment dates may be so remote from the separation or refusal date that a causal relationship is questionable.
The fact that a medical certificate confirms claimant’s statements regarding his ailment and his doctor’s advice to quit should not automatically result in a determination in the claimant’s favor, since there may by other controlling factors. For example, the claimant may have exaggerated or incorrectly described to his physician the conditions under which he worked or the duties he performed. Also, the claimant may have failed to request or accept an exemption from some duties, a reassignment or transfer, or, if the health condition is temporary, a leave of absence which was available to him. Thus verification with employer or physician may be in order."

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