Opinion
519291
03-19-2015
In the Matter of the Claim of Wiley CUNNINGHAM, Appellant. Commissioner of Labor, Respondent.
Wiley Cunningham, Rochester, appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.
Wiley Cunningham, Rochester, appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.
Opinion Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 20, 2013, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.
Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant, a driver for a wheelchair transportation service, voluntarily left his employment without good cause. The record establishes that after claimant was injured on the job and sought medical treatment, he was cleared to return to work with restrictions. Notwithstanding the fact that the employer informed claimant that work was available within those restrictions, claimant continued to postpone his return until consulting with additional medical providers. Although the employer subsequently attempted to contact claimant about his employment through a certified letter, claimant did not receive the letter because he failed to update his address with the employer. Ultimately, the employer met with claimant and informed him that he was to return to work by a specified date or produce medical documentation substantiating his position that he was unable to perform his job duties. Thereafter, claimant failed to report to work or provide any medical documentation in accordance with the employer's instructions.
Given claimant's failure to take reasonable steps to protect his employment, we find no reason to disturb the Board's decision (see Matter of Bellinger [Commissioner of Labor], 104 A.D.3d 1034, 1034–1035, 960 N.Y.S.2d 752 [2013] ; Matter of Felder [McRoberts Protective Agency, Inc.-Commissioner of Labor], 21 A.D.3d 1175, 1176, 800 N.Y.S.2d 798 [2005] ; Matter of Maricle [Commissioner of Labor], 16 A.D.3d 739, 740, 790 N.Y.S.2d 328 [2005] ). To the extent that claimant and the employer offered conflicting testimony regarding the events surrounding his separation from employment, this presented a credibility issue for the Board to resolve (see Matter of Canty [Commissioner of Labor], 49 A.D.3d 943, 943–944, 853 N.Y.S.2d 396 [2008] ). Further, we find no reason to disturb the Board's finding that claimant made a willful misrepresentation given that he stated on his application for unemployment insurance benefits that he was discharged from his position even though continuing work was available to him (see Matter of Hill [Commissioner of
Labor], 37 A.D.3d 931, 932, 829 N.Y.S.2d 734 [2007], lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 536, 875 N.E.2d 29 [2007] ; Matter of Maricle [Commissioner of Labor], 16 A.D.3d at 740, 790 N.Y.S.2d 328 ).
ORDERED that the decision is affirmed, without costs.
McCARTHY, J.P., ROSE, LYNCH and CLARK, JJ., concur.