Opinion
2012-02-9
In the Matter of the Claim of Cindy L. LEWIS, Respondent.County of Livingston, Appellant.Commissioner of Labor, Respondent.
Osborn, Reed & Burke, L.L.P., Rochester (David W. Lippitt of counsel), for appellant. Cynthia Feathers, Glens Falls, for Cindy L. Lewis, respondent.
Osborn, Reed & Burke, L.L.P., Rochester (David W. Lippitt of counsel), for appellant. Cynthia Feathers, Glens Falls, for Cindy L. Lewis, respondent.
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 A.D.3d 1400, 1400, 918 N.Y.S.2d 272 [2011]; Matter of Anumah [Commissioner of Labor], 60 A.D.3d 1216, 1217, 876 N.Y.S.2d 172 [2009], lv. denied 13 N.Y.3d 706, 2009 WL 2998206 [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 A.D.3d at 1400, 918 N.Y.S.2d 272; Matter of Sunderland [Nassau County Med. Ctr.-Roberts], 121 A.D.2d 779, 780, 503 N.Y.S.2d 191 [1986]; Matter of Curato [Ross], 70 A.D.2d 719, 720, 416 N.Y.S.2d 423 [1979] ). We examined the employer's remaining contentions and found them to be unpersuasive.
ORDERED that the decision is affirmed, without costs.