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

In this case, the Appeal Board handles the issue of whether a claimant can claim Unemployment Insurance benefits and Social Security Disability disability benefits:

"IN THE MATTER OF: Appeal Board No. 551664 A

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

The claimant applied to the Appeal Board pursuant to Labor Law § 534 for a reopening and reconsideration of its decision filed January 11, 2010 (A.B. Case No. AB547964), which affirmed the decision of the Administrative Law Judge. The decision of the Administrative Law Judge sustained the initial determinations holding the claimant ineligible to receive benefits, effective June 23, 2008, on the basis that the claimant was not available for employment; holding the claimant ineligible to receive benefits, effective June 25, 2008, on the basis that the claimant was not capable of work; charging the claimant with an overpayment of $3198 in benefits recoverable pursuant to Labor Law §597 (4); charging the claimant with an overpayment of $492 in Emergency Unemployment Compensation 2008 benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act 2008; and reducing the claimant's right to receive future benefits by 120 effective days on the basis that the claimant made willful misrepresentations to obtain benefits. Upon due deliberation on the application, the Board has reopened and reconsidered its decision. By order filed November 10, 2010, the Board remanded the case to the Hearing Section for 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. Now, based on all of the foregoing and on the entire record, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a part time bartender for an organization until May 23, 2008. The claimant separated from this employment due to multiple medical conditions which prohibited him from performing all of the duties of the job. The claimant filed a claim for benefits in June, 2008. At the time that he filed the claimant certified that he was capable of employment and ready, willing and able to work. The claimant was under the care of several doctors and taking medical treatments and medications for his symptoms. The doctors did not advise the claimant that he could not work. He was told to do what he could do. The claimant expected to return to his former employment. When the claimant certified each week he certified that he was ready, willing and able to work and that he was capable of employment. The claimant received benefits for each week that he certified. The claimant did not feel that he was getting better even though he was receiving medical treatment. He perceived that his condition was getting worse. He applied for Social Security Disability Insurance (SSDI) benefits in September, 2008. He continued to certify for unemployment benefits advising the department that he was capable of employment and ready willing and able to work when he had submitted paperwork to the federal government indicating that he was no longer capable of any employment. He continued to receive benefits as a result of these certifications. The claimant was held to be totally disabled and eligible for SSDI benefits and received retroactive benefits to November 2, 2008.

OPINION: The credible evidence establishes that the claimant was ready, willing and able to work and capable of employment until November 2, 2008. We accept the claimant's testimony that no doctor told him that he could not work during the period at issue. Even though the claimant perceived that his condition was getting worse, he was still capable of some work up until the point where it was determined that he was totally disabled and incapable of further employment. We thus must conclude that the claimant was ineligible to receive benefits beginning November 2, 2008, when he began to receive his SSDI payments. As the claimant was available and capable of work up until November 2, 2008, his certifications to that effect until November 2, 2008, were truthful and accurate. After November 2, 2008, however, the claimant's certifications were incomplete contradiction to the statement of total disability given to another governmental agency. The number of penalty days is referred back to the department for recalculation. Additionally, the claimant was entitled to receive benefits up until November 2, 2008 and therefore his overpayment amount should be reduced accordingly. Those benefits received after November 2, 2008 are recoverable as the claimant's certifications were factually and willfully false.

DECISION: The decision of the Appeal Board is rescinded. The decision of the Administrative Law Judge is modified accordingly. The initial determinations holding the claimant ineligible to receive benefits and holding the claimant ineligible to receive benefits on the basis that the claimant was not capable of work are modified to be effective November 2, 2008, and as so modified, sustained. The initial determinations charging the claimant with an overpayment of $3198 in benefits recoverable pursuant to Labor Law § 597 (4); charging the claimant with an overpayment of $492 in Emergency Unemployment Compensation 2008 benefits recoverable pursuant to Section 4005(b) of the Federal Supplemental Appropriation Act 2008; and reducing the claimant's right to receive future benefits by 120 effective days on the basis that the claimant made willful misrepresentations to obtain benefits are modified and sustained in accordance with the above decision and referred back to the department for recalculation. The claimant is allowed benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER

MICHAEL T. GREASON, MEMBER"