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)"