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)"