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."