A bartender suffering from anxiety after a head injury violates the New York Workers' Compensation Act by selling clothing online without disabilities, but her actions did not justify a permanent disqualification of benefits, a New York court of appeal ruled Thursday to overturn an earlier decision .
The bartender, temporarily disabled after a concussion after hitting his head on a radiator in 2017 and then diagnosed with anxiety, continued to work part-time for Darden Restaurant, as doctors cleared her to work easily, according to documents in 2020 NY Slip Op 06001 filed in the Court of Appeal of the Supreme Court of New York, Third Chamber, Albany.
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She then testified that she was an independent consultant for LuLaRoe and sold the clothes via Facebook. She testified that she did not make money from her sale because she first had to buy more than $ 17,000 in goods and then sell online, a business she started before she was injured. She testified that her husband helped her with postal items and that she "did not intend to conceal the activities of the carrier", the documents state. After the hearing, the judge ruled that there was no violation of the law.
On appeal, the State Workers & # 39; Compensation Board reversed and found that it violated the law and imposed a mandatory penalty for revoking benefits from April 27, 2017 to October 18, 2018, as well as issuing a penalty for permanent disqualification of benefits.
The Appeals Division held that "substantial evidence supports" the conclusion that she failed to report other work activities, by law, but that the "discretionary" decision to permanently disqualify her from receiving future salary benefits may not be disproportionate to the underlying conduct. . where it has been applied, "the underlying fraud has been considered to be serious or serious, or there was a lack of mitigating circumstances", the decision states.
The department also wrote that “the applicant was easy about her business when she was questioned and declined cash benefit checks after she resumed part-time work with the employer … Based on all the circumstances presented, we do not find sufficient support for the Board's decision that the applicant conducts & # 39; a serious pattern of behavior & # 39 ;.