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)"