In re the Claim of Gonzalez

May 14, 1992
Versions:183 A.D.2d 1026
583 N.Y.S.2d 636
1992 N.Y. App. Div. LEXIS 7151

Appeal from a decision of the Unemployment Insurance Ap*1027peal Board, filed January 17, 1991, which ruled that claimant was entitled to receive unemployment insurance benefits.

Due to a back injury that claimant sustained in 1987, claimant was tardy or absent on various occasions. Although the employer ultimately decided to terminate claimant, it orally agreed that if claimant would submit to an examination by a doctor who would certify that claimant was disabled from working, it would instead place claimant on disability leave. Despite this agreement, the employer discharged claimant on the ground that the note from claimant’s doctor failed to provide sufficient information regarding claimant’s inability to work. The determination of misconduct is a factual issue for the Unemployment Insurance Appeal Board to resolve (see, Matter of Arroyo [Dry Harbor Nursing Home — Hartnett], 145 AD2d 886, 887; Matter of Nunes [Roberts], 98 AD2d 934). Here, claimant made a good-faith effort to comply with the employer’s request by undergoing a physical examination and submitting documentation thereof. Not only did the employer fail to make explicit its requirements with respect to medical documentation of claimant’s chronic back injury and his inability to work, but the employer never advised claimant, before terminating him, what more was expected. Based on the evidence presented, the decision that claimant’s acts did not constitute disqualifying misconduct is supported by substantial evidence and must be upheld (see, Matter of Arroyo [Dry Harbor Nursing Home — Hartnett], supra, at 887; Matter of Padilla [Sephardic Home for the Aged — Roberts], 113 AD2d 997).

Mikoll, J. P., Yesawich Jr., Levine, Mercure and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.