NEW YORK UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

In this matter, note the majority and dissent - which will be posted tomorrow:

Mailed and Filed: NOVEMBER 20, 2013IN THE MATTER OF: Appeal Board No. 570626 A

"OPINION: The credible evidence establishes that the claimant voluntarily left his job after working approximately four days in his new position because he could not handle the physical demands of the job. We note that the claimant had complained to the employer's supervisor at the site about his pain and asked for a rubber mat which he had used during his prior work. However, the supervisor denied his request for an accommodation.Thus, the claimant took adequate steps to preserve his employment prior to separation.As the claimant had only worked in the position for approximately four days, he did not accept the terms and conditions of the job (See Appeal Board Nos. 566815, 566789,565066, 564435). The Board has held that an individual has good cause to leave a job when the job harms the individual's health (See Appeal Board No. 485031). Accordingly,we conclude that the claimant voluntarily left his position with good cause. To find otherwise would contravene our mandate to give a liberal construction to Labor Law §501, a remedial statute recognized by the Court as humanitarian or grounded on a humane public policy, to accomplish the Legislature's intended purpose (see, Labor Law§ 501; Matter of Machcinski, 277 AD 634). It follows, and we further conclude, that there is no overpayment of benefits.

The dissent's reliance on Matter of Strader (49 AD3d 1120 [3rd Dept 2008]), Matter of Moore (32 AD3d 1088 [3rd Dept 2006]), Matter of Matuszewski (24 AD3d 1153 [3rd Dept2005]), and Matter of Conners (9 AD3d 703 [3rd Dept 2004]) is misplaced. Those cases do not involve claimants who left their jobs due to inability to handle the physical demands of the job, but for other reasons. Unlike those cases, in the case at hand, the claimant could not have known at the time of hire that the work would impair his health until after he began performing it. The facts of this case are similar to Appeal Board No.566789, a decision signed by the dissent. In that case, the claimant was found after a week of working, to have been unable to perform the tasks of his job as it was causing him back pain, and the claimant's decision to separate from employment was found to be with good cause and not disqualifying. Similarly, in this case the claimant did not anticipate how the duties of his new position would affect his back when he took the job and the impetus for his decision to leave was his physical condition.

Although the dissent argues that there were other factors that prompted the claimant to quit, including the call from a prospective employer for a job interview, the Court has found the existence of multiple reasons for dissatisfaction with employment not to be a bar to a finding of good cause. However, we are mindful of the importance to identify the"impetus" of the resignation when evaluating whether there was good cause for a claimant's voluntary separation of employment. (See Matter of Cottone, 2013 N.Y.App.Div. Lexis 5895 [3rd Dept 2013]). In the case at hand, the record clearly establishes that the impetus for the claimant's resignation was the inability to handle the physical demands of the job. We find that claimant's receipt of a call from a prospective employer and an offer of a job interview coincidental and unrelated to the claimant's real reason for quitting - the adverse affect the work had upon his health. Furthermore, contrary to the dissent's argument, our assessment of the record shows that the claimant credibly and consistently testified that he informed the supervisor of his back pain.

In addition, the dissent would like to find disqualification based on the claimant's purported failure to contact the owner. The Board has never required that a claimant must always complain to the owner of a business before quitting. Rather, the Board examines whether a claimant has taken any steps to preserve employment, which is a factor weighed together with other factors in determining whether a claimant left employment for good cause. In the case at hand, the claimant complained to the employer's supervisor at the site about his condition and requested an accommodation.The claimant was not obliged to complain further up the chain. Furthermore, nothing in the record establishes that the claimant was aware that he was required to complain to the owner when his request for an accommodation was denied by management."