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In the Matter of the Claim of

State of New York Supreme Court, Appellate Division Third Judicial Department


February 9, 2012

IN THE MATTER OF THE CLAIM OF CINDY L. LEWIS, RESPONDENT. COUNTY OF LIVINGSTON,
APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and Egan Jr., JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 2, 2010, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant worked for the employer for 23 years as a certified nursing assistant in a county-owned nursing home. Pursuant to an agreement between the employer and claimant's union, the employer could mandate that staff work overtime, a procedure known as "mandation." After claimant refused to work mandated overtime shifts on June 27, 2009 and again on July 4, 2009, her employment was terminated. Claimant's initial application for unemployment insurance benefits was denied on the basis that she had lost her employment through misconduct. The Unemployment Insurance Appeal Board ultimately reversed that determination and awarded claimant benefits. The employer appeals.

We affirm. Whether an employee's failure to work the required hours rises to the level of disqualifying misconduct is a factual issue for the Board to resolve and its determination will not be disturbed when supported by substantial evidence (see Matter of Buyukcekmece [Abigail Kirsch at Tappan-Commissioner of Labor], 82 AD3d 1400, 1400 [2011]; Matter of Anumah [Commissioner of Labor], 60 AD3d 1216, 1217 [2009], lv denied 13 NY3d 706 [2009]). Here, claimant's orthopedic doctor issued notes that indicated that claimant was medically restricted with regard to the amount of overtime she could work during the relevant period, and the record demonstrates that the employer had been notified of those restrictions. Inasmuch as it has been held that the loss of employment attributable to substantiated health problems will not constitute disqualifying misconduct, we decline to disturb the Board's decision (see Matter of Buyukcekmece [Abigail Kirsch at Tappan-Commissioner of Labor], 82 AD3d at 1400; Matter of Sunderland [Nassau County Med. Ctr.--Roberts], 121 AD2d 779, 780 [1986]; Matter of Curato [Ross], 70 AD2d 719, 720 [1979]). We examined the employer's remaining contentions and found them to be unpersuasive.

Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120209

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