Wednesday, April 4, 2012

NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

The DOL has recognized that disability creates issues regarding avilability for work. Thus, a claimant mught be eligible for benefits but the disability disqualifies the claimant because the claimant is no longer available for work:

"Illness and disability

Where inability to call on prospective employer was due to illness, benefit rights were suspended for incapability and not for refusal. (A.B. 916-39; A.B. 1397-39)

Illness between reporting periods resulted in suspension of benefit rights for incapability. (A.B. 594-39)

To maintain his eligible status, claimant must be capable of and available for employment, regardless of whether or not there were jobs actually available in his trade during that period. (A.B. 982-39)

Claimant, afflicted with a mental illness, whose only work experience was with the aid and help of his brother during the canning season and who refused to accept other canning jobs, was held to be incapable of performing work which there was a reasonable possibility of’ obtaining. (A.B. 11,759-45; A-750-642)

Claimant, who entered convalescent home to rebuild his health and was not permitted to leave the grounds under penalty of expulsion, was both incapable and unavailable. (A.B. 3065-40; A-750-187)

Entering a veterans’ domiciliary home for a rest and on the basis of proving inability to work established unavailability. (A.B. 11,963-45; A-750-664; similarly A.B. 25,333-50)

A claimant with a serious heart ailment which caused him to be retired by employer on disability pension and Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 1311-39; A-750-4)

Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 7747-42; A-750-383)

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. (A.B. 9745-43; A-750-501)

Handicapped workers were capable of employment if they were able to perform some work, which there was a reasonable probability of obtaining. Reasonable probability did not mean that there must be actual placement opportunities in existence at the time. (A.B. 1160-39; similarly, A.B. 966-39)

A notification from the United States Employment Service that claimant was unplaceable in employment, based on a medical report that claimant was not able to work, was held not controlling and insufficient to support a determination of incapability, where the evidence established that claimant had a work history of protracted employment, demonstrating his ability to perform work and remain in the labor market despite his affliction with Parkinson's disease.

NOTE: There was no evidence to show that such employment as claimant had, had been, or would be injurious to his health. (A.B. 12,317-45)

Where claimant, a carpenter, suffered from pulmonary tuberculosis but desired light work of any kind and demonstrated his physical ability to work full time prior to and subsequent to filing for benefits, despite his physician's statement that he needed a complete rest for an indefinite period of time and suggestion that he work only three or four hours a day, (statements not quite consistent in themselves) it was concluded that he was available for and capable of employment.

NOTE: The doctor’s statement was not an unequivocal assertion that work would be injurious to claimant’s health and was nullified to some extent by the fact that the doctor himself employed the claimant after making the statement. (A.B. 13,159-46; A-750-771)

(a) Discharge for pilfering is not disqualifying when such conduct stems from a psychiatric disorder manifested by a compulsion to steal.

(b) A claimant discharged under such circumstances is incapable of employment in the absence of medical evidence that he is no longer suffering from the psychiatric disorder. (A.B. 191,103; A-750-1773)"

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