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)"