NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

A somewhat different view has been taken by the Appeal Board when the issue of misconduct relates to a proper use of prescription medication. See IN THE MATTER OF: Appeal Board No. 546853 (Mailed and Filed: JANUARY 06, 2010):

"OPINION: The credible evidence establishes that the claimant was discharged on December 24, 2008, because he was discovered sleeping instead of working. The parties have disagreed on the date of discharge with the claimant contending that he was told to take off January 2009 to recover from a January 6, 2009 esophageal procedure and in February 2009 he was told that he was discharged. We credit the employer's testimony on this point over that of the claimant because on these circumstances, it is more logical that the employer's memory of their interaction upon awakening the claimant would be more accurate than that of the claimant who had just been awakened from a drug induced sleep.It is undisputed that the claimant suffered injury from the suicide attempt. We have further accepted the employer's testimony that upon awakening the claimant, he was "out of it" with glassy eyes and slurred speech. Since the employer does not contend that the claimant had been drinking, there is nothing to gainsay the claimant's testimony that he suffered pain and took the prescription medicine which had been prescribed for this. Since it had never caused the claimant to go to sleep before, and since the claimant had no prior incident of sleeping on the job, we conclude that the claimant's prescription-drug induced sleeping episode, instead of working, does not rise to the level of misconduct."