Opinion
July 8, 1970
MEMORANDUM BY THE COURT. Appeal from a decision of the Workmen's Compensation Board, filed July 25, 1969, which determined that claimant was entitled to disability benefits since he left his employment, prior to injury, because of an intolerable working condition. Claimant worked for an exterminating concern four or five months, having been told when he started that his hours of employment would be from 8:00 A.M. to 5:00 P.M. On several occasions, he received orders requiring work to be done earlier in the day to service customers such as luncheonettes which desired to avoid disturbance of patrons by chemical odors. On March 15, 1967, having been sent to service a location in Queens at 7:45 A.M., he motored from his home in Albertson, Long Island, only to receive no response on reaching his destination. There was testimony that claimant called his service manager and told him that this had happened before and that if it occurred too often he would have to resign, whereupon the manager stated that, if he did not like it, he could "pack it right in." Shortly thereafter, claimant left his tools at the employer's office and did not return to work. There is no proof that claimant was affected adversely by the earlier than usual work or that the employer knew that this or any other customer would not respond on arrival. A claimant, whose employment has been terminated and who would not be eligible for unemployment insurance benefits, is not eligible for disability benefits under article 9 of the Workmen's Compensation Law (Workmen's Compensation Law, § 205, subd. 7; Matter of Needleman v. Queensboro Med. Group, 31 A.D.2d 383, 385-386) and an employee who has voluntarily left his employment without good cause is not eligible for unemployment insurance benefits (Labor Law, § 593, subd. 1; Matter of De Cicco [ Catherwood], 24 A.D.2d 666). We conclude that the earlier than usual work, reasonably required by the employer's business and not adversely affecting claimant, was not, as a matter of law, "good cause" for leaving the employment (cf. Matter of Imre [ Catherwood], 27 A.D.2d 970; Matter of Weiss [ Catherwood], 26 A.D.2d 851; Matter of Sybell [ Catherwood], 14 A.D.2d 981). Decision reversed and claim dismissed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by the court.