NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Recent Appeal Board decisions indicate that a claimant can claim Unemployment Insurance benefits when denied Social Security Disability disability benefits. For example:

"IN THE MATTER OF: Appeal Board No. 545417

PRESENT: MICHAEL T. GREASON, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determinations holding the claimant ineligible to receive benefits, effective April 28, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $10,530 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $810 in emergency unemployment compensation benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act of 2008, Title IV-Emergency Unemployment Compensation; and reducing the claimant's right to receive future benefits by 80 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits. The claimant requested a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed March 17,2009 (), the Administrative Law Judge sustained the initial determinations. The claimant appealed the Judge's decision to the Appeal Board.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: On April 28, 2008, the claimant filed an original claim for benefits effective April 28, 2008, after working for approximately twenty years as a general manager for an armored car service company. His job duties included lifting 100-125 pound boxes, ordering supplies and answering telephones. The claimant lost his job under circumstances that are not at issue herein. On or about May 7, 2008, the claimant filed a claim for disability insurance benefits under a private insurance policy because he felt that he could no longer perform his job duties due to a back injury and depression.The claimant provided medical documentation to his insurance company that he could not do repetitive lifting of more than 20 or 25 pounds and that he could not stand or sit for more than two hours at a time without a break. The claimant applied for Social Security disability benefits in July 2008. On or about August 19, 2008, the claimant was denied Social Security disability benefits. On or about September 12, 2008, the private insurance company approved approximately $3,500 a month in disability benefits for the claimant because the claimant was not physically capable of returning to his former employment. The claimant received $10,530 in regular unemployment insurance benefits from May 2008 through the statutory week ending December 7, 2008 and received $810 in emergency unemployment compensation (EUC) benefits for the following two statutory weeks ending December 14 and December 21, 2008. During each of the weeks that he received benefits, the claimant represented that he was ready, willing and able to work. The claimant is able to work as a telemarketer making calls and as a receptionist answering telephone calls. He was seeking employment within his restrictions.

OPINION: The credible evidence establishes that the claimant was capable of working, with medical restrictions, during the period at issue. Significantly, the claimant in this case was denied Social Security disability benefits. Moreover, a claimant is considered capable of employment as long as he is able to do some work. It need not be the same work as he did before, and it need not be for the same employer. (See A.B. Case No.532351). We note that the claimant's physician permitted the claimant to work with restrictions regarding lifting and the length of time that he could sit. Furthermore, the claimant was found to be eligible for private disability insurance because he was not able to perform all the job duties of his former position, and not because he was unable to work at all. In addition, the claimant has been seeking work within his restrictions. Accordingly, we conclude that the claimant was capable of employment and eligible for benefits from April 28, 2008 onward. As the claimant is capable of employment, the $10,530 in regular unemployment insurance benefits and the $810 in emergency unemployment compensation benefits that the claimant received do not constitute an overpayment. The credible evidence also establishes that the claimant certified each week that he was ready, willing, and able to work. Since he is capable of working within set restrictions, his certifications do not constitute wilful misrepresentations.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determinations, holding the claimant ineligible to receive benefits, effective April 28, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $10,530 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $810 in emergency unemployment compensation benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act of 2008, Title IV-Emergency Unemployment Compensation; and reducing the claimant's right to receive future benefits by 80 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits, are overruled.The claimant is allowed benefits with respect to the issues decided herein.

MICHAEL T. GREASON, MEMBER

LEONARD D. POLLETTA, MEMBER"