ON VACATION

Back on September 8 and I hope everyone has a wonderful and safe Labor Day.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 3 as set forth in the August 25, 2011 blog:

"SOCIAL SECURITY
News Release (2007)
Commissioner Astrue Extends Social Security’s Quick Disability Determination Nationwide- Final Rule Will Accelerate Benefits to Those Deemed Clearly Disabled

Michael J. Astrue, Commissioner of Social Security, today announced that Social Security has issued a final regulation to extend the quick disability determination (QDD) process to all State disability determination services. Under QDD, a predictive model analyzes specific elements of data within the electronic claims file to identify claims where there is a high potential that the claimant is disabled and where evidence of the person’s allegations can be quickly and easily obtained.

“The quick disability determination has been very successful and efficient so far in New England and I am happy to say it will help people filing for disability benefits anywhere in the United States. This is a very important step we are taking at Social Security to improve our disability programs,” Commissioner Astrue said. “I also am proud of our improvements with pending disability cases that have reached 1,000 days waiting for an appeal hearing. We have aggressively worked on these cases and now have fewer than 600 pending, down from more than 63,000 cases in October of last year.”

Social Security currently receives more than 2.5 million new Social Security disability cases and more than 2.3 million Supplemental Security Income cases each year. In New England, where QDD began on a test basis, cases constituted slightly less than 3 percent of all new cases. Of those, 97 percent of the cases identified have been decided within 21 days and the average decision time is 11 days. Since the model does not yet incorporate as many diseases as it can, Commissioner Astrue has committed to expanding the number of cases that can be identified while maintaining the same level of accuracy.

“The length of time many people wait for a disability decision is unacceptable,” Commissioner Astrue said. “I am committed to a process that is as fair and speedy as possible. While there is no single magic bullet, with better systems, better business processes and better ways of fast-tracking targeted cases, we can greatly improve the service we provide this vulnerable population.”

The final regulation is effective as of September 5, 2007, and will be gradually implemented over the next several months. For more information about Social Security’s disability programs, go to www.socialsecurity.gov."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 3 as set forth in the August 25, 2011 blog:

The SS "Complete List of Compassionate Allowances Conditions" is set forth at this link:

Complete List of Compassionate Allowances Conditions

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 3 as set forth in the August 25, 2011 blog:

"Compassionate Allowances

Social Security has an obligation to provide benefits quickly to applicants whose medical conditions are so serious that their conditions obviously meet disability standards.

Compassionate Allowances (CAL) are a way of quickly identifying diseases and other medical conditions that invariably qualify under the Listing of Impairments based on minimal objective medical information. Compassionate Allowances allow Social Security to quickly target the most obviously disabled individuals for allowances based on objective medical information that we can obtain quickly.

CAL conditions are developed as a result of information received at public outreach hearings, comments received from the Social Security and Disability Determination Service communities, counsel of medical and scientific experts, and our research with the National Institutes of Health (NIH). Also, we considered which conditions are most likely to meet our current definition of disability.

Commissioner Astrue has held seven Compassionate Allowances public outreach hearings. The hearings were on rare diseases, cancers, traumatic brain injury (TBI) and stroke, early-onset Alzheimer's disease and related dementias, schizophrenia, cardiovascular disease and multiple organ transplants and autoimmune diseases.

On July 14, 2011, Commissioner Astrue held an event at the Dirksen Senate Office Building, room 106, at 10:00 a.m. in Washington D.C. to announce the addition of 12 new conditions to the Compassionate Allowances list of conditions. This addition brings the number of Compassionate Allowances conditions to 100."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 3 as set forth in the August 25, 2011 blog and the Listing of Impairments -Adult Listings (Part A) applicable to individuals age 18 and over and to children under age 18 where criteria are appropriate as set forth in the August 26, 2011 blog:

Listing of Impairments - Adult Listings (Part A)

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 3 as set forth in the August 25, 2011 blog:

"Disability Evaluation Under Social Security
(Blue Book- September 2008)

Part III - Listing Of Impairments

The Listing of Impairments describes, for each major body system, impairments considered severe enough to prevent an individual from doing any gainful activity (or in the case of children under age 18 applying for SSI, severe enought to cause marked and severe functional limitations). Most of the listed impairments are permanent or expected to result in death, or the listing includes a specific statement of duration is made. For all other listings, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months. The criteria in the Listing of Impairments are applicable to evaluation of claims for disability benefits under the Social Security disability insurance program or payments under both the SSI program.

Part A of the Listing of Impairments contains medical criteria that apply to the evaluation of impairments in adults age 18 and over. The medical criteria in Part A may also be applied in evaluating impairments in children under age 18 if the disease processes have a similar effect on adults and younger children.

Part B of the Listing of Impairments contains additional medical criteria that apply only to the evaluation of impairments of persons under age 18. Certain criteria in Part A do not give appropriate consideration to the particular effects of the disease processes in childhood; that is, when the disease process is generally found only in children or when the disease process differs in its effect on children and adults.

Additional criteria are included in Part B, and the impairment categories are, to the extent possible, numbered to maintain a relationship with their counterparts in Part A. In evaluating disability for child under age 18, part B will be used first. If the medical criteria in part B do not apply, then the medical criteria in part A will be used. The criteria in the Listing of Impairments apply only to one step of the multi-step sequential evaluation process. At that step, the presence of an impairment that meets the criteria in the Listing of Impairments (or that is of equal severity) is usually sufficient to establish that an individual who is not working is disabled. However, the absence of a listing-level impairment does not mean the individual is not disabled. Rather, it merely requires the adjudicator to move on to the next step of the process and apply other rules in order to resolve the issue of disability.

SSA Pub. No. 64-039
ICN 468600
September 2008"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website:

"3. Is your condition found in the list of disabling conditions?

For each of the major body systems, we maintain a list of medical conditions that are so severe they automatically mean that you are disabled. If your condition is not on the list, we have to decide if it is of equal severity to a medical condition that is on the list. If it is, we will find that you are disabled. If it is not, we then go to Step 4.

Note: We have two initiatives designed to expedite our processing of new disability claims:

◦Compassionate Allowances: Certain cases that usually qualify for disability can be allowed as soon as the diagnosis is confirmed. Examples include acute leukemia, Lou Gehrig’s disease (ALS) and pancreatic cancer.

◦Quick Disability Determinations: We use sophisticated computer screening to identify cases with a high probability of allowance ."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is from the Social Security website:

"To decide whether you are disabled, we use a step-by-step process involving five questions. They are:

1.Are you working?

If you are working in 2011 and your earnings average more than $1,000 a month, you generally cannot be considered disabled.

If you are not working, we go to Step 2.

2.Is your condition "severe"?

Your condition must interfere with basic work-related activities for your claim to be considered. If it does not, we will find that you are not disabled. If your condition does interfere with basic work-related activities, we go to Step 3."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

I believe that a Social Security determination that a claimant is capable of employment is strong presumptive evidence. This is from the Social Security website:

"The definition of disability under Social Security is different than other programs. Social Security pays only for total disability. No benefits are payable for partial disability or for short-term disability.

"Disability" under Social Security is based on your inability to work. We consider you disabled under Social Security rules if:

•You cannot do work that you did before;

•We decide that you cannot adjust to other work because of your medical condition(s); and

•Your disability has lasted or is expected to last for at least one year or to result in death.

This is a strict definition of disability. Social Security program rules assume that working families have access to other resources to provide support during periods of short-term disabilities, including workers' compensation, insurance, savings and investments."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Thus, it would appear that according to the Appeal Board, if a claimant's application for social security disability was denied on the ground that the claimant was capable of working, "this is strong persuasive evidence supporting the claimant's contention that (the claimant) was capable of work as of that date." IN THE MATTER OF: Appeal Board No. 552810 (Mailed and Filed: APRIL 28, 2011 PRESENT: LEONARD D. POLLETTA, GEORGE FRIEDMAN MEMBERS).

LINK TO APPEAL BOARD DECISION No. 552810

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

In this case, the Appeal Board handles the issue of whether a claimant can claim Unemployment Insurance benefits and Social Security Disability disability benefits:

"IN THE MATTER OF: Appeal Board No. 551664 A

PRESENT: LEONARD D. POLLETTA, MICHAEL T. GREASON MEMBERS

The claimant applied to the Appeal Board pursuant to Labor Law § 534 for a reopening and reconsideration of its decision filed January 11, 2010 (A.B. Case No. AB547964), which affirmed the decision of the Administrative Law Judge. The decision of the Administrative Law Judge sustained the initial determinations holding the claimant ineligible to receive benefits, effective June 23, 2008, on the basis that the claimant was not available for employment; holding the claimant ineligible to receive benefits, effective June 25, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $3198 in benefits recoverable pursuant to Labor Law §597 (4); charging the claimant with an overpayment of $492 in Emergency Unemployment Compensation 2008 benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act 2008; and reducing the claimant's right to receive future benefits by 120 effective days on the basis that the claimant made willful misrepresentations to obtain benefits. Upon due deliberation on the application, the Board has reopened and reconsidered its decision. By order filed November 10, 2010, the Board remanded the case to the Hearing Section for a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. Now, based on all of the foregoing and on the entire record, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a part time bartender for an organization until May 23, 2008. The claimant separated from this employment due to multiple medical conditions which prohibited him from performing all of the duties of the job. The claimant filed a claim for benefits in June, 2008. At the time that he filed the claimant certified that he was capable of employment and ready, willing and able to work. The claimant was under the care of several doctors and taking medical treatments and medications for his symptoms. The doctors did not advise the claimant that he could not work. He was told to do what he could do. The claimant expected to return to his former employment. When the claimant certified each week he certified that he was ready, willing and able to work and that he was capable of employment. The claimant received benefits for each week that he certified. The claimant did not feel that he was getting better even though he was receiving medical treatment. He perceived that his condition was getting worse. He applied for Social Security Disability Insurance (SSDI) benefits in September, 2008. He continued to certify for unemployment benefits advising the department that he was capable of employment and ready willing and able to work when he had submitted paperwork to the federal government indicating that he was no longer capable of any employment. He continued to receive benefits as a result of these certifications. The claimant was held to be totally disabled and eligible for SSDI benefits and received retroactive benefits to November 2, 2008.

OPINION: The credible evidence establishes that the claimant was ready, willing and able to work and capable of employment until November 2, 2008. We accept the claimant's testimony that no doctor told him that he could not work during the period at issue. Even though the claimant perceived that his condition was getting worse, he was still capable of some work up until the point where it was determined that he was totally disabled and incapable of further employment. We thus must conclude that the claimant was ineligible to receive benefits beginning November 2, 2008, when he began to receive his SSDI payments. As the claimant was available and capable of work up until November 2, 2008, his certifications to that effect until November 2, 2008, were truthful and accurate. After November 2, 2008, however, the claimant's certifications were incomplete contradiction to the statement of total disability given to another governmental agency. The number of penalty days is referred back to the department for recalculation. Additionally, the claimant was entitled to receive benefits up until November 2, 2008 and therefore his overpayment amount should be reduced accordingly. Those benefits received after November 2, 2008 are recoverable as the claimant's certifications were factually and willfully false.

DECISION: The decision of the Appeal Board is rescinded. The decision of the Administrative Law Judge is modified accordingly. The initial determinations holding the claimant ineligible to receive benefits and holding the claimant ineligible to receive benefits on the basis that the claimant was not capable of work are modified to be effective November 2, 2008, and as so modified, sustained. The initial determinations charging the claimant with an overpayment of $3198 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $492 in Emergency Unemployment Compensation 2008 benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act 2008; and reducing the claimant's right to receive future benefits by 120 effective days on the basis that the claimant made willful misrepresentations to obtain benefits are modified and sustained in accordance with the above decision and referred back to the department for recalculation. The claimant is allowed benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER

MICHAEL T. GREASON, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Recent Appeal Board decisions indicate that a claimant can claim Unemployment Insurance benefits when denied Social Security Disability disability benefits. For example:

"IN THE MATTER OF: Appeal Board No. 545417

PRESENT: MICHAEL T. GREASON, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determinations holding the claimant ineligible to receive benefits, effective April 28, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $10,530 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $810 in emergency unemployment compensation benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act of 2008, Title IV-Emergency Unemployment Compensation; and reducing the claimant's right to receive future benefits by 80 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits. The claimant requested a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed March 17,2009 (), the Administrative Law Judge sustained the initial determinations. The claimant appealed the Judge's decision to the Appeal Board.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: On April 28, 2008, the claimant filed an original claim for benefits effective April 28, 2008, after working for approximately twenty years as a general manager for an armored car service company. His job duties included lifting 100-125 pound boxes, ordering supplies and answering telephones. The claimant lost his job under circumstances that are not at issue herein. On or about May 7, 2008, the claimant filed a claim for disability insurance benefits under a private insurance policy because he felt that he could no longer perform his job duties due to a back injury and depression.The claimant provided medical documentation to his insurance company that he could not do repetitive lifting of more than 20 or 25 pounds and that he could not stand or sit for more than two hours at a time without a break. The claimant applied for Social Security disability benefits in July 2008. On or about August 19, 2008, the claimant was denied Social Security disability benefits. On or about September 12, 2008, the private insurance company approved approximately $3,500 a month in disability benefits for the claimant because the claimant was not physically capable of returning to his former employment. The claimant received $10,530 in regular unemployment insurance benefits from May 2008 through the statutory week ending December 7, 2008 and received $810 in emergency unemployment compensation (EUC) benefits for the following two statutory weeks ending December 14 and December 21, 2008. During each of the weeks that he received benefits, the claimant represented that he was ready, willing and able to work. The claimant is able to work as a telemarketer making calls and as a receptionist answering telephone calls. He was seeking employment within his restrictions.

OPINION: The credible evidence establishes that the claimant was capable of working, with medical restrictions, during the period at issue. Significantly, the claimant in this case was denied Social Security disability benefits. Moreover, a claimant is considered capable of employment as long as he is able to do some work. It need not be the same work as he did before, and it need not be for the same employer. (See A.B. Case No.532351). We note that the claimant's physician permitted the claimant to work with restrictions regarding lifting and the length of time that he could sit. Furthermore, the claimant was found to be eligible for private disability insurance because he was not able to perform all the job duties of his former position, and not because he was unable to work at all. In addition, the claimant has been seeking work within his restrictions. Accordingly, we conclude that the claimant was capable of employment and eligible for benefits from April 28, 2008 onward. As the claimant is capable of employment, the $10,530 in regular unemployment insurance benefits and the $810 in emergency unemployment compensation benefits that the claimant received do not constitute an overpayment. The credible evidence also establishes that the claimant certified each week that he was ready, willing, and able to work. Since he is capable of working within set restrictions, his certifications do not constitute wilful misrepresentations.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determinations, holding the claimant ineligible to receive benefits, effective April 28, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $10,530 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $810 in emergency unemployment compensation benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act of 2008, Title IV-Emergency Unemployment Compensation; and reducing the claimant's right to receive future benefits by 80 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits, are overruled.The claimant is allowed benefits with respect to the issues decided herein.

MICHAEL T. GREASON, MEMBER

LEONARD D. POLLETTA, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Yesterday's blog cited a case where the claimant was receiving state disability benefits. Here is a case where the claimant is dealing with Social Security benefits:

"Appeal Board Case No. 113,369

and

APPELLATE DIVISION DECISION

Matter of John L. Roehsler

CAPABILITY, QUESTION OF; SOCIAL SECURITY DISABILITY BENEFITS

The filing of an application for disability benefits under the Social Security Act or the receipt of such benefits does not constitute conclusive proof of incapability but may be treated as evidence in support of a factual determination of incapability.

Appeal Board Decision

The Industrial Commissioner appeals from the decision of the referee filed April 30,1964, insofar as it overrules the initial determinations of the Out-of-State Resident Office (1) holding claimant ineligible to receive benefits effective October 14, 1963, on the ground that he was not available for and no capable of employment and charging him with an overpayment of $387.50 in benefits ruled to be not recoverable and (2) holding the claimant ineligible to receive benefits effective December 23, 1963, on the ground that he was not available for employment, as modified by the referee to be effective January 3, 1964 only and March 10 through March 21, 1964.

Findings of Fact: Claimant had worked as a truck driver for about 35 years. He was compelled to abandon work in that occupation in about September 1961 because he suffered a broken back and leg injuries. After he made some recovery from the injuries he suffered, he worked intermittently as a taxi driver between February 1962 and March 1963. On or about March 15, 1963, claimant again became disabled due to a coronary occlusion which he suffered. He recovered from his disability sufficiently to enable him to engage in sedentary or clerical work on and after October 12, 1963. He actually worked as a telephone solicitor for one day but abandoned that work because excessive travel time and considerable walking was involved to travel to that place of employment. Since April 13, 1964, claimant has worked on a full-time basis as an assistant manager of a restaurant.

Pursuant to the advice of his physician that it would be advisable for him to reside in a warmer climate, claimant went to Puerto Rico on December 22, 1963. His wife remained in New York City and claimant continued to maintain his apartment there. Although he made no inquiry in advance with respect to opportunities for work in Puerto Rico, he maintained that he went to that area for the purpose of becoming employed there. He established his resident in Puerto Rico at a point which would have required travel for at least an hour to reach any possible labor market. Moreover, opportunities for the procurement of work by claimant in Puerto Rico were virtually non-existent because of claimant’s inability to speak Spanish fluently. He submitted statements at the Puerto Rico local office purporting to indicate a search for work by having allegedly visited one establishment on each day. He indicated that he followed that pattern of seeking work because he was advised that in Puerto Rico an applicant for benefits was required to establish contact with one prospective employer a day. Claimant was unable to qualify for a taxi driver’s license in Puerto Rico. Admittedly, claimant was ill with a virus infection on January 3, and from March 10 to March 21, 1964, and he was unable to work on those days.

Throughout the period here at issue, claimant received disability benefits under the provision of the Federal Social Security Act and he also received disability pension payments from two local unions. He was paid unemployment insurance benefits aggregating $387.50 for the period between October 21 and December 15, 1963 prior to the issuance of the initial determinations here under review, and it was held that although such payments constitute an overpayment, they are not recoverable.

Opinion: It is contended on behalf of the Industrial Commissioner that since claimant received an accepted disability benefits under the Federal social security program on the basis of his certification that he was unable to engage in any substantial gainful employment, he is necessarily ineligible for unemployment insurance benefits, on the ground that he is incapable of employment within the provisions of the Unemployment Insurance Law. The theory so advanced is without validity. (See Matter of Roehsler, 19 App. Div. 2d, 927, reversing Appeal Board, 98,779). The application for disability benefits under the Federal Social Security Act and the receipt of benefits thereunder are evidentiary matters, but do not constitute conclusive proof of incapability under the provisions of the Unemployment Insurance Law. This is especially true, since the Social Security Act encourages the resumption of work by recipients of disability benefits, in that the Act specifically requires a recipient for such benefits to submit to vocational rehabilitation. Moreover, the Act provides for the continuance in the payment of disability benefits notwithstanding that the recipient thereof engages in employment for a period of time while receiving such benefits (Section 222 of the Federal Social Security Act, as amended).

In the instant case, the proof adduced establishes that claimant was not totally prevented, by reason of his disability, from engaging in some employment. On the contrary, it has been established that claimant is physically capable of engaging in various types of sedentary work. The procurement of work by claimant confirms that fact. Accordingly, we conclude that except for January 3, and from March 10 through March21, 1964, when the specific illness for which claimant suffered prevented him from working, he was capable of employment.

Until claimant left New York City to go to Puerto Rico, he established his availability for work by presenting himself for employment wherever he believed work, which he could perform, was available. Similarly, after claimant returned to New York City from Puerto Rico, he again established his availability for work. However, while claimant was in Puerto Rico, he effectively withdrew from the labor market. While claimant may have acted in the interest of his health in temporarily moving to Puerto Rico, his failure to make advance inquiries with respect to opportunities for work in that area indicate the lack of a real desire to become there employed. This is especially true in view of claimant’s inability to speak fluently the language of the Island. Claimant’s alleged search for work while in Puerto Rico fails to demonstrate the exercise of real diligence. It appears that he attempted to make a formal compliance with what he believed was required of an applicant for benefits in Puerto Rico rather than to actually procure work. If, in truth, claimant was desirous of becoming employed, he would not have remained in Puerto Rico for almost four months after having learned soon after his arrival in that area that there were virtually no opportunities for his employment.

In view of the foregoing, we conclude that claimant was unavailable for employment from December 22, 1963 through April 3, 1964, and that except for such periods, he was available for an capable of employment. Since claimant was available for and capable of employment from October 21, 1963 through December 15, 1963, the benefits of $387.50 which he received for that period, do not constitute an overpayment.

Decision: The initial determinations of the Out-of-State Resident Office holding claimant ineligible for benefits on the ground that he was not available for an not capable of employment effective October 14, 1963 and charging him with an overpayment of $387.50 in benefits ruled to be not recoverable, is overruled.

The initial determination of the local office holding claimant ineligible to receive benefits effective December 23, 1963, on the ground that he was not available for employment is modified to the extent that it is held that claimant was unavailable for employment effective December 23, 1963 through April 3, 1964 and as so modified, the said initial determination is sustained. The decision of the referee is modified accordingly. (August 3, 1964)

COURT DECISION

It seems clear that claimant was uncertain whether his respiratory condition, which greatly restricted his physical activities but not, necessarily, some self-employment in work upon promotional ideas and programs, was of such a nature as to disqualify him from unemployment insurance benefits (Labor Law, §527, subd. 1, par. [a]; §591, subd. 2) and whether, if it was, it was so serious as to entitle him to disability benefits from the Federal Social Security Administration (see U.S. Code, tit. 42, §423). In this quandary, claimant made application to both agencies and it is undisputed that he did so without concealment or intent to defraud. Indeed, claimant requested the Social Security Administration to make available to the Industrial Commissioner the medical data compiled in his case, but this the Administration refused to do.

In this case, claimant’s application to the Social Security Administration might properly have been treated as evidence supportive of a factual determination of disability and consequent disqualification; but we are unable to determine whether the board gave the application that effect or whether the decision is to be construed as embodying the legally erroneous holding that the mere filing of the application established disability and consequent disqualification from unemployment insurance benefits as a matter of law (cf. Matter of San Filippo v. San Filippo, 17 A.D. 2d 1019, mot. For lv. to app. den. 12 NY 2d 645; Neel v. Ribicoff, 204 F. Supp. 914; Johnson v. Flemming, 188 F. supp. 477; Thompson v. Flemming, 188 F. Supp. 123).

Remittal being necessary in any event, claimant should have a further opportunity to present medical evidence; particularly so because, in the course of a colloquy on that subject, he was not informed that the legal burden to do so was upon him."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Is a claimant who receives disability benefits, as opposed to Workmen's Compensation, capable of employment? Here is a case on the question:

"Appeal Board Case No. 29,469-51

CAPABILITY, QUESTION OF; RECEIPT OF BENEFITS UNDER DISABILITY BENEFITS LAW

Where claimant upon adequate proof of total disability is entitled to benefits under the Disability Benefits Law, he is deemed incapable of employment and ineligible for unemployment insurance benefits.

Referee's Decisions: The initial determination of the local office holding claimant ineligible for benefits from January 5, 1951 through February 11, 1951, on the ground that he was incapable of employment is overruled. (September 13, 1951)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a porter, was employed at his customary occupation until December 3, 1950 when he voluntarily left his job because he no longer was physically able to perform the duties required of him. On December 11, 1950, he filed for benefits and registered for employment. Claimant visited a physician on January 15, 1951 at which time he complained of varicose veins. The physician discovered that claimant was suffering from a serious malignant condition in addition to varicosity. The physician recommended immediate hospitalization and surgery. He also indicated that, from a medical viewpoint, claimant was totally disabled and incapable of performing any work at least as of January 5, 1951. On February 13, 1951, claimant was admitted to a hospital for surgical treatment. He was continuously confined thereafter until March 14, 1951. A claim for disability benefits was filed with the Workmen's Compensation Board of the State of New York on April 10, 1951. On the notice and proof of claim for disability benefits, claimant stated that the first full day upon which he was unable to work because of his claimed disability, was January 5, 1951. As a result of filing such claim he received disability benefits for the period January 5, 1951 through February 11, 1951. Claimant had reported at his local unemployment insurance office and certified to total unemployment for the same period. On the basis of such certification, he received $138 in unemployment insurance benefits for the six-week period from January 5, 1951 through February 11, 1951. Subsequently this sum was recouped by the State by way of setoff. Based upon information furnished by the Workmen's Compensation Board, the local office issued an initial determination holding claimant ineligible for benefits for the period January 5, 1951 through February 11, 1951 on the ground that he was incapable of employment. Claimant requested a hearing and the referee overruled the initial determination. The Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The referee concluded that claimant was available for and capable of employment during the period in issue since his capability was substantiated by a medical report. We are not in accord with the conclusion reached by the referee. It appears from the evidence now before us that claimant had not filed for disability benefits before entering a hospital for surgery. Consequently his receipt of unemployment insurance benefits was not open to question by local office personnel at that time. However, upon being discharged from the hospital claimant filed a claim for disability benefits retroactive to the period January 5, 1951 through February 11, 1951. Such benefits were paid only upon adequate proof that claimant was totally disabled within the meaning of the Disability Benefits Law during the period for which claim was made (Disability Benefits Law, Section 201). Since claimant proved his total disability for the period in issue by adequate medical evidence it follows that he must have been incapable of employment. Under such circumstances, he was ineligible for unemployment insurance benefits for same period since he did not meet the capability requirements of the statute (Unemployment Insurance Law, Section 522). A claimant may not be the recipient of unemployment insurance benefits and disability benefits for the same period since such benefits are mutually exclusive (Disability Benefits Law Section 206.1(c)). Where a claimant is totally disabled, thus entitling him to receive disability benefits by reason thereof, he is deemed incapable of employment and ineligible for unemployment insurance benefits within the meaning of the Unemployment Insurance Law. On the other hand, if a claimant should be deemed physically capable of employment, he does not meet the total incapacity requirement entitling him to disability benefits (Disability Benefits Law, Section 207.1). Upon all the facts and circumstances herein, we are convinced that claimant was incapable of employment during the period in issue. Consequently, he was ineligible for unemployment insurance benefits for that period. However, since the amount of the overpayment was subsequently offset, claimant is not deemed to have been overpaid in benefits.

Appeal Board Decision: The initial determination of the local office, holding claimant ineligible for benefits for the period January 5, 1951 through February 11, 1951, upon the ground that he was incapable of employment, is sustained. The decision of the referee is reversed. (May 2, 1952)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Is a claimant who receives Workmen's Compensation capable of employment? Here is another case on the question:

"Appeal Board Case No. 6748-42

CAPABILITY- WORKMEN’S COMPENSATION AWARD FOR TOTAL DISABILITY

Workmen’s Compensation award for permanent total disability, while creating a strong presumption of physical inability to work, was not conclusive on question of capability within the meaning of the Unemployment Insurance Law.

Referee’s Decision: Initial determination suspending claimant’s benefit rights as of the date of her registration for benefits because of unavailability for and incapability of unemployment is sustained. (12/6/41)

Appealed by: Claimant

Findings of Fact: Claimant was employed from November 1933 to September 21, 1940 as a saleslady in a department store. During such employment and in February 1937 claimant suffered a serious eye injury. She filed a claim for Workmen’s Compensation in 1937 and on May 24, 1939 the Industrial Board affirmed the award of the referee for 7½ per cent loss of vision of claimant’s both eyes. The aware amounted to $12.03 per week plus $500 for a serious facial disfigurement. A report of the medical examiner of the Workmen’s Compensation Bureau dated January 23,1940 states that by reason of claimant’s diminution of vision, claimant is permanently, totally disabled. Claimant, however, was advised that she may continue to work. Claimant left her employment prior to September 23, 1940, and on that date another hearing was held before the Workmen’s Compensation Board, pursuant to claimant’s request for a rehearing of her claim. An award was thereafter rendered canceling all previous awards and adjudging claimant to be permanently and totally disabled and awarding her benefits at the rate of $15 per week. Claimant filed an application for unemployment insurance benefits on September 30,1940. She reported regularly thereafter and certified weekly to her total unemployment until she exhausted her benefit rights on January 23,1941. Claimant received thirteen benefit checks in the amount of $169 during the benefit year. On April 1,1941 claimant filed an application for benefit for the new benefit year. Her former employer reported that claimant had been adjudged totally disabled by the Workmen’s Compensation Bureau. On the basis of the information received from the Bureau of Workmen’s Compensation, the local office issued an initial determination to the effect that claimant was unavailable for an incapable of employment from the date of her original filing on September 30,1940, demanded repayment of the $169 in benefits previously collected by claimant and suspended payment of her benefits on the April 1, 1941 filing. Claimant is a widow, sixty-two years of age and has had four years of high school and some schooling in stenography at business college. For a number of years her work has been as a saleslady. Claimant contends that she was at all time ready, willing and able to work. She admits that she could no longer work full time at her former job because it became too strenuous and caused dizziness and headaches. She stated that she could work as a saleslady for only several hours a day. Her physician testified that claimant was capable of performing light work, provided the work did not entail the use of her eyes to any great extent. He stated that she could work only brief periods of time at position which required continuous use of normal vision for detail work.

Appeal Board Opinion: The basis of the initial determination of incapability in this case was the Workmen’s Compensation Bureau award to claimant for permanent total disability. We cannot accept the contention that such an award for permanent total disability operates to automatically bar a claimant from benefits. While we agree that an award of that nature raises a strong presumption of physical inability to work, we do not believe, that it can be considered conclusive on the question of capability for work within the meaning of the Unemployment Insurance Law. The determination of capability is a question to be decided on the evidence and the fact as present in each particular case. We take notice of the fact that in workmen's compensation cases any permanent disability in excess of 80 per cent is adjudged to be a permanent total disability for the purposes of a compensation award. It cannot be denied that in many such cases there may remain to the workman powers of labor which are of some value in the labor market. It is significant to note that with respect to the instant claimant she continued to work at her usual occupation for more than six months after the medical examiner had reported to the Workmen's Compensation Bureau that, in his opinion, claimant. was permanently totally disabled. Whether the claimant possessed powers of labor to such a degree as to constitute capability for work within the meaning of the Unemployment Insurance Law must be measured in the light of the tests previously laid down by us. With respect to the period for which claimant has collected benefits, there is sufficient testimony in the record to resolve the doubts in the claimant's favor. Although the evidence tends to show that claimant loss of vision was a progressive condition, it does not appear that her physical condition had changed appreciably during the period from September 30, 1940 to January 23, 1941. The credible evidence establishes that during that period she continued to have powers of labor which were of some value in the labor market. We believe that she was still capable of performing some light work during that period and that there was a reasonable possibility that such work was obtainable. We accordingly hold that during the period for which claimant has collected benefits, she was capable of work and she is entitled to the benefits she received. However, with respect to the period following claimant's filing of April 1, 1941, we hold that claimant was not available for or capable of work. After a consideration of all the evidence we are of the opinion that claimant failed to establish that she was capable of work at that time. Taking into consideration the progressive nature of her eye condition, the passage of time and all the attendant circumstances, we reach the conclusion that claimant's physical condition at that time was such that she was not available for and capable of work within the meaning of the Unemployment Insurance Law.

Decision: Claimant was available for and capable of work during the period September 21, 1940 to January 23, 1941. Claimant was unavailable for and incapable of employment during the period commencing April 1, 1941 and her benefit rights were, properly suspended for that period. The initial determination of the local office is modified. The decision of the referee is modified accordingly. (5/11/42)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Is a claimant who receives Workmen's Compensation capable of employment? Here is one case on the question:

"Appeal Board Case. No. 6427-41

CAPABILITY -RECEIPT OF WORKMEN' S COMPENSATION

Receipt of workmen's compensation did not constitute proof of incapability for employment where there was satisfactory evidence to the contrary.

Referee's Decision: Initial determination suspending claimant's benefit for incapability as of April 1, 1941 is modified. Claimant was capable of employment on June 18, 1941. (10/8/41)

Appeal by: Claimant

Findings of Fact: Claimant, fifty-six years of age, was employed for fifteen years as a longshoreman. Claimant suffered an injury to his leg on October 18, 1940 and collected workmen's compensation benefits at the rate of $25.00 per week from October 18, 1940 to January 30, 1941, $15.00 per week from January 30, 1941 to March 25, 1941 and $10.00 per week from March 26, 1941 to June 18,1941. Claimant filed an application for unemployment insurance benefits on April 1, 1941 but failed to report as instructed on April 18, 1941. He refilled on April 25, 1941 and certified to weeks of total unemployment until July 11, 1941. On August 13, 1941 the local office issued an initial determination suspending claimant's benefit rights as of April 1, 1941 on the ground that he was physically incapable of employment and charged the claimant with an overpayment of $80.00 in benefit checks for the compensable period from the week ending May 9, 1941 to the week ending July 11, 1941. Claimant requested a hearing and the referee ruled that he was capable of employment as of June 18, 1941. The report of claimant's physical condition by a physician on the medical staff of the Bureau of Workman's Compensation dated March 25, 1941 disclosed that claimant was able to resume work in March 25, 1941. The report of the claims department of claimant's employer stated that claimant had an earning capacity after January 30, 1941.

Appeal Board Opinion: The medical evidence submitted to this Board establishes that claimant was able to resume work on March 25, 1941. On the basis of this evidence, we hold that claimant was capable of employment throughout his reporting period at the local office. The suspension by the local office of claimant's benefit rights because he was incapable of employment was improper.

Decision: Initial determination of the local office suspending claimant's benefit rights because he was incapable of employment is overruled. Decision of the referee is modified accordingly. (2/9/42)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The disability which renders one incapable of employment may also be a mental disability - again this case is from the NYS UI AB Electronic Interpretation Service:

"Appeal Board Decision 191,103

DISCHARGE FOR PILFERING

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

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.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective September 28, 1973, because he lost his employment through misconduct in connection herewith, is overruled.

Appealed by: Industrial Commissioner.

Findings of fact: The claimant, an electrical technician, worked for a public utility for about 23 years through September 27, 1973. He has a psychiatric disorder manifested, in part, by his compulsion to take from others objects for which he had no personal use. In the last two years he was arrested four times for petty larcenies. On September 27, 1973 he took from the employer’s premises, without permission, two rolls of wire, valued at about $140, for the use and benefit of a friend. When accused, he admitted that he had taken the wire and promptly retrieved the two rolls. The claimant was discharged because of this act. After his discharge, he first sought psychiatric attention for his condition and is now undergoing such treatment. He filed an original claim for benefits on October 9, 1973.

Opinion: The credible evidence establishes that the claimant was discharged for committing an act over which he had no control. When we have heretofore considered conduct leading to disqualification either for misconduct or a provoked discharge, we have sustained such a disqualification where claimant committed a conscious act of free will. On the other hand, when the claimant’s conduct stemmed from an illness, it has been held not to result in such disqualifications (Appeal Board 192,188; 103,193). In the instant case, the claimant was suffering from a psychiatric disorder which by its nature precludes the conclusion that his act was that of a person freely exercising his will. In the absence of any evidence that the claimant’s behavior was deliberate, willful or consciously wanton or negligent, and in view of the persuasive medical evidence of claimant’s psychiatric disorder at the time of the acts here in issue, we conclude that the claimant‘s acts did not, under the Unemployment Insurance Law constitute misconduct nor did he provoke his discharge.

However, since it appears that claimant had not sought medical attention for his psychiatric disorder until after he was discharged and that he filed his claim for benefits within two weeks of his discharge, and in the absence of medical evidence to the contrary, we conclude that at the time he filed his claim he was still suffering from the psychiatric disorder and was, therefore, incapable of employment.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 28, 1973 because he lost his employment through misconduct in connection therewith is modified to hold claimant ineligible to receive benefits effective October 9, 1973 because he was not capable of employment, and as so modified, is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 26, 1974)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

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


CAPABILITY - PHYSICAL INABILITY TO PERFORM REGULAR WORK .

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}"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is another old Appeal Board case but again illustrates the capability issue - here the claimant was retired due to a disability and was on pension but was denied disability insurance from his insurance carrier - again this case is from the NYS UI AB Electronic Interpretation Service:

"Appeal Board Case 1311-39

CAPABILITY - SERIOUS HEALTH AILMENT - RETIRED ON DISABILITY PENSION FROM EMPLOYER

A claimant with a serious heart ailment who cannot perform any work which there is a reasonable probability of obtaining, is not capable of employment within meaning of Section 502.10.

Referee’s Decision: Claimant was not capable of employment. (September 6; 1939)

Appeal by: Claimant

Findings of Fact: Claimant, 61 years of age, worked as an inspector and field man for a Utility concern. In January 1936, he suffered a heart attack, which was diagnosed as coronary thrombosis and remained away from work until April. He was absent again from May to November 1936. In October 1937 claimant was examined by a company physician and was there- upon retired for disability with a life pension. Claimant visited the local office first in March 1938 and was then informed that he was not eligible for benefits because he was drawing a life pension. In March 1939, he read in a newspaper that receipt of pensions was no bar to benefits, but at the time, he was in the country because of his heart trouble and he did not register until two months later.

Issue: whether claimant was capable of employment.

Appeal Board Opinion: Claimant has been suffering from a serious heart ailment with complications; his medical History proves him to have been incapable of any employment which there was a reasonable probability of obtaining from the time he was retired for disability with a life pension. Claimant testified that an insurance company denied his application for disability benefits in 1938, but in view of the facts herein little weight can be attached to an insurance company's resistance to his claim based on a policy issued to him.

Decision: Claimant was incapable of employment. Decision of the Referee affirmed."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is another old Appeal Board case but illustrates the capability issue - these cases are from the NYS UI AB Electronic Interpretation Service:

"Appeal Board Case No. 3065-40


CAPABILITY - AVAILABILITY - CLAIMANT CONFINED IN CONVALESCENT HOME

Claimant, who enters convalescent home to rebuild his health and is not permitted to leave the grounds under penalty of expulsion, has removed himself from the labor market and is not capable of and available for employment.
Referee’s Decision: Claimant was not available for employment (May 15, 1940)

Appeal by: Claimant

Findings of Fact: Claimant filed for benefits on April 3, 1940. On April 8, 1940 claimant entered convalescent home to rebuild his health and recuperate from an abdominal operation undergone in February. Although he required no medical care at the home, he was not permitted to leave the grounds under pain of immediate expulsion. While at the home, claimant failed to report on his due date of April 15, 1940. He refiled on April 22, 1940 at which time he reported his stay at the home. Local office suspended his benefit rights from the date of entry into convalescent home.

Issue: Whether claimant was capable of and available for employment during the period of suspension.

Appeal Board Opinion: It is obvious that claimant removed himself from the labor market when he entered the home to rebuild his health. This purpose could not be accomplished if claimant were to accept employment. The conditions surrounding claimant’s stay at the home were such as to make it difficult for him to seek or accept employment.

Decision: Suspension of claimant’s benefit rights sustained. Decision of referee affirmed."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is an old Appeal Board case but illustrates the capability issue:

"Appeal Board Case No. 11,1759-45

CAPABILITY - MENTAL ABILITY - EMPLOYMENT RESTRICTION

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.

Findings of Fact: A hearing was held herein at which the claimant, his representative and a representative of the Industrial Commissioner appeared, and testimony was taken. Claimant, 32 years of age, was employed for three seasons as a cannery laborer at a cannery located in Mt. Morris, New York. Prior to this employment the claimant had never worked because of a mental illness. While thus employed he worked with his brother who operated a filling and capping machine. Claimant’s duties consisted of removing the filled and capped cans from a table into a steel basket. Claimant’s brother watched over him and saw that he properly performed the work. At the end of the season, when the filling and capping machines were no longer used, claimant was transferred to other work, but was unable to perform the duties required of the job and was laid off. Claimant filed an application for benefits on December 20, 1944, and has reported to date. On January 8, 1945, he was offered referral by the United States Employment Service to employment as a cannery laborer at a cannery located at Rochester, New York. The prospective employer furnished bus transportation to its plant. Claimant refused to accept the referral stating to the effect that he was unable to accept any employment unless he could work in a job where his brother could assist him and watch over him. The local office issued an initial determination holding claimant ineligible for benefits effective January 8, 1945, on the ground that claimant was unavailable for and incapable of employment. Claimant requested a hearing. The claimant’s brother with whom he worked appeared at the hearing. He stated that due to his brother’s condition he was not able to perform any work without his guidance and supervision.

Referee’s Opinion and Decision: Cclaimant’s only work experience has been with the aid and help of his brother. Without this assistance the claimant is unable to perform any work. It is clear from the record that claimant, except during the canning season when he is able to work with his brother, is incapable of performing work such as there may be a reasonable probability of obtaining. I hold, therefore, that the claimant was not available for and capable of employment within the meaning of the statute. The initial determination herein is sustained. (2/27/45)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (4/3O/45)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Next, explore the list of cases from the NYS Appeal Board Electronic Interpretation System:

"725. 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)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

From the NYS Appeal Board Electronic Interpretation Service:

"Section 591.2 of the Unemployment Insurance Law imposes two conditions for eligibility for benefits:

1. The claimant must be "capable of work". That is (s)he must possess the physical and mental ability to perform work; and

2. The claimant must be "ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience." One who meets this condition is considered to be "available" for work.

The issue of capability must be resolved whenever the local office receives information that a claimant may be, or may have been, unable to work due to some physical or mental impairment. The impairment may be a temporary condition caused by a short-term illness or injury. or may result from a chronic or debilitating illness or disability. In resolving a question of capability involving long term or serious conditions, claims personnel are not only to consider the nature and extent of the impairment, but also to evaluate the claimants residual capacity for work.

A claimant who is capable of work must also be available for work to be eligible for benefits. That is, (s)he must be ready. willing and able to work in employment for which (s)he is reasonably fitted by training and experience. A claimant is considered to be available for work if (s)he places no unreasonable restrictions on the type or conditions of employment (s)he will accept, is making a diligent effort to obtain work. and is prepared to start work without delay upon securing employment.

Notwithstanding the requirement of Section 591.2 that a claimant be ready, willing and able to work in a claimant may not be denied benefits due to unavailability because of such claimants service on a grand or petit jury of any state or of the United States.. (sub. sec. 591.1); nor may a claimant be held ineligible for benefits because of "regular attendance at a vocational training course. or at a course in basic education skills which the commissioner has approved (sub. sec. 599.1). or because (s)he "is in training approved under the federal trade act of nineteen hundred seventy-four...". (sub. sec. 599.2)

When interviewing claimants regarding the issues of availability and capability, claims personnel should consult the appropriate Fact-Finding Guidecards for a checklist of questions to be explored. Determinations should be made in accordance with the principles reported in this section of the Interpretation Service Index, the policies set forth in relevant Special Bulletins (A-710 series) and Field Memoranda."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

From the NYS UI regulations (emphasis supplied) where the issue of capability is discussed albeit in another context:

"§ 490.5 Total unemployment
(Unemployment Insurance Law, § 522)..

"Days of rest and absence with pay.

A claimant who is capable of and available for work is totally unemployed on Sundays, holidays and other days of rest scheduled by his employer, even if an employer-employee relationship exists on such days, provided he does not work on such days and they are not days of paid vacation or other paid leave....."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

A quick read of page 6 of the Claimant's Handbook of the DOL would indicate that having a disability that prevents a claimant from working would not preclude the claimant from unemployment insurance benefits. I am of course referring to the section which states:

"If you are a person with a disability who is unable to access our services without the assistance of another person, you may allow another person to assist provided you are present each time the services are accessed including the entry of the PIN. You will be held accountable for the actions of your agent and may be subject to penalties including forfeiture of benefits if you are not present when your agent accesses our services."

It would appear that a "person with a disability who is unable to access our services without the assistance of another person" is also a person who is not able to work.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is from page 6 of the Claimant's Handbook of the DOL (emphasis supplied):

"When you call TEL-SERVICE, you will be asked to choose your language. You will then hear two options:

• For general information about Unemployment Insurance, press 1.

• To claim weekly benefits or other claim services, press 2.

After you press option “2” and your Social Security Number and PIN have been verified, the system will ask you if you want to claim your weekly benefits or find out information on your payments.

• To claim unemployment insurance benefits, say ‘claims’ or press “1”.

• To inquire about the status of your payments, say ‘payment status’ or press “2”.

*If you are a person with a disability who is unable to access our services without the assistance of another person, you may allow another person to assist provided you are present each time the services are accessed including the entry of the PIN. You will be held accountable for the actions of your agent and may be subject to penalties including forfeiture of benefits if you are not present when your agent accesses our services. Claiming weekly benefits When you claim weekly benefits, whether you use the web or TEL-SERVICE, the system will ask you a series of questions. Your eligibility to weekly benefits is based on your answers to the questions. You will be prompted to enter your Social Security Number and your PIN. You will be asked some or all of the following:

• If you want to claim benefits for the previous week.

• If your address has changed since you last claimed benefits.

• If you worked during the previous week, and if yes, the number of days you worked.

• If you refused an offer of employment.

• If you were ready, willing and able to work during the previous week.

• If you received any holiday pay for days during the previous week.

• If you received any vacation pay for days during the previous week.

• If there was a break in your claim since the last time you claimed benefits, you will be asked the reason for the break.

• If there was a break because you were employed, you will be asked the specific reason why you are no longer working.

• If you are in an approved training program, you will be asked about your attendance at training."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is from page 1 of the Claimant's Handbook of the DOL (emphasis supplied):

"Unemployment insurance is temporary income for eligible workers who become unemployed through no fault of their own and who are ready, willing, and able to work and have sufficient wages in covered employment."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Here is a complete copy of the applicable statute:

" Sec. 591. Eligibility for benefits.

1. Unemployment. Benefits, except as provided in section five hundred ninety-one-a of this title, shall be paid only to a claimant who is totally unemployed and who is unable to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. A claimant who is receiving benefits under this article shall not be denied such benefits pursuant to this subdivision or to subdivision two of this section because of such claimant`s service on a grand or petit jury of any state or of the United States. .

Subd.1 as amended by L. 1981, Ch. 446 effective July 7, 1981 and L. 1994, Ch. 596 effective January 1, 1995. In effect until December 7, 2002.

2. Availability and capability. Except as provided in section five hundred ninety-one-a of this title, no benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience.

Subd.2 as amended by L. 1994, Ch. 596, effective January 1, 1995. In effect until December 7, 2002.

3. Vacation period or holiday. (a) No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.

(b) The term "vacation period", as used in this subdivision, means the time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative. If either the collective bargaining agreement or the employment contract is silent as to such time, or if there be no collective bargaining agreement or employment contract, then the time so designated in writing and announced to the employees in advance by the employer is to be considered such vacation period.

(c) A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than thirty days thereafter, directly by his employer or through a fund, trustee, custodian or like medium provided the amount thereof has been contributed solely by the employer on behalf of the claimant and the amount so contributed by the employer is paid over in full to the claimant without any deductions other than those required by law, even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right, and irrespective of whether the employment has or has not been terminated.

(d) Any agreement expressed or implied by a claimant or by his union or other representative to a plant or department shut down for vacation purposes is not of itself to be considered either a withdrawal by such employee from the labor market during the time of such vacation shut down or to render him unavailable for employment during the time of such vacation shut down.

Subd.3 as amended by L. 1963, Ch. 794 effective April 26, 1963.

4. (a) An unemployed individual shall be eligible to receive benefits with respect to any week only if such individual participates in reemployment services, such as job search assistance services, available under any state or federal law, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:

(i) the individual has completed such services; or

(ii) there is justifiable cause for the claimant`s failure to participate in such services.

(b) Such profiling system shall be established pursuant to a plan of the department which shall include, but not be limited to:

(i) specification of the profiling methodology, including factors used to determine a claimant`s required participation in reemployment services and the statistical relationship of such factors to the exhaustion of benefits by certain claimants;

(ii) standards to be used to insure that all claimants are uniformly evaluated against the profiling criteria;

(iii) a description of criteria to be used to make assignments to basic reemployment services offered;

(iv) procedures for notification of the right of appeal and for appeal by a claimant of the profiling assessment and referral of the department;

(v) an evaluation of the extent to which reemployment services are available throughout the state and accessible to claimants;

(vi) a demonstration of efforts by the department to coordinate with the local providers offering reemployment services, to avoid duplication of services among providers offering similar reemployment services to the same participant group;

(vii) policies and procedures for referrals to reemployment services, including referrals to providers other than the department; and (viii) guidelines governing the extent to which education and skills or occupational training shall be offered.

(c) The department shall, at a time and in a manner consistent with federal requirements, submit a report to the temporary president of the senate and the speaker of the assembly on the profiling system authorized herein except that such report:

(i) shall be submitted to the temporary president of the senate and the speaker of the assembly no later than September first, nineteen hundred ninety-five and annually thereafter, and

(ii) shall include data on the number of individuals profiled and the number of profiled individuals exhausting benefits as well as a description of the service or services provided to profiled individuals and the number of individuals referred for reemployment services during the program year ending the preceding June thirtieth.

Subd.4 as added by L. 1994, Ch. 586 effective October 1, 1994.

5. Maximum combined payments. If a claimant is receiving benefits pursuant to subdivision six of section fifteen of the workers` compensation law, the unemployment benefits to which a claimant may be entitled pursuant to this article shall be limited to the difference between the amount of workers` compensation benefits and one hundred percent of the claimant`s average weekly wage.

Subd.5 as added by L. 1996, Ch. 635, effective September 10, 1996.

§591 as amended by L. 1953, Ch. 720, effective May 4, 1953."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

From the Appeal Board website:

"700. Introduction

Section 591.2 of the Unemployment Insurance Law imposes two conditions for eligibility for benefits:

1. The claimant must be "capable of work". That is (s)he must possess the physical and mental ability to perform work; and

2. The claimant must be "ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience." One who meets this condition is considered to be "available" for work.

The issue of capability must be resolved whenever the local office receives information that a claimant may be, or may have been, unable to work due to some physical or mental impairment. The impairment may be a temporary condition caused by a short-term illness or injury. or may result from a chronic or debilitating illness or disability. In resolving a question of capability involving long term or serious conditions, claims personnel are not only to consider the nature and extent of the impairment, but also to evaluate the claimants residual capacity for work.

A claimant who is capable of work must also be available for work to be eligible for benefits. That is, (s)he must be ready. willing and able to work in employment for which (s)he is reasonably fitted by training and experience. A claimant is considered to be available for work if (s)he places no unreasonable restrictions on the type or conditions of employment (s)he will accept, is making a diligent effort to obtain work. and is prepared to start work without delay upon securing employment.

Notwithstanding the requirement of Section 591.2 that a claimant be ready, willing and able to work in a claimant may not be denied benefits due to unavailability because of such claimants service on a grand or petit jury of any state or of the United States.. (sub. sec. 591.1); nor may a claimant be held ineligible for benefits because of "regular attendance at a vocational training course. or at a course in basic education skills which the commissioner has approved (sub. sec. 599.1). or because (s)he "is in training approved under the federal trade act of nineteen hundred seventy-four...". (sub. sec. 599.2)

When interviewing claimants regarding the issues of availability and capability, claims personnel should consult the appropriate Fact-Finding Guidecards for a checklist of questions to be explored. Determinations should be made in accordance with the principles reported in this section of the Interpretation Service Index, the policies set forth in relevant Special Bulletins (A-710 series) and Field Memoranda."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is from the DOL website FAQ and emphasis is on the issue to be discussed:

Q: How do I know if I may file a claim?

A: By law, the unemployment insurance program provides benefits to people who: .

Have enough employment to establish a claim
Have lost employment through no fault of their own
Are ready, willing and able to work and
Are actively seeking work"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

This is a recent case and involves the issue of capability of employment. A claimant was referred to me who was denied unemployment insurance on the grounds that claimant was not capable of employment.