In re the Claim of Caver

violated the rule requiring her to submit medical documentation of both the fact of her pregnancy and its termination, the employer gave claimant additional time to obtain the required medical documentation. Concededly, claimant provided no medical documentation during this extension. Shortly after the extension period, a union steward gave claimant’s supervisor a medical certificate from Caledonian Hospital regarding claimant. This document, which had obviously been tampered with, stated that on December 20, 1981 and again on February 9, 1982, claimant had been seen for “pregnancy disturbance”. After receiving the note and observing that the word “pregnancy” therein had been written over another word, claimant’s supervisor called Caledonian Hospital and was informed that claimant visited the hospital in September, 1981, and on the dates stated in the note, and had been treated for menstrual disturbance which had nothing to do with pregnancy or tumor. Based on the above, claimant was removed from the payroll. By initial determination, the Commissioner of Labor denied claimant unemployment benefits on the ground that she lost her employment through misconduct. Specifically, claimant failed to provide her employer with medical substantiation of her leave of absence. Claimant appealed and, after a hearing, the initial determination was reversed by an administrative law judge who concluded that claimant had not committed misconduct amounting to a disqualifying condition under the Unemployment Insurance Law. The board affirmed and this appeal by the employer ensued. The question presented on appeal is whether there is substantial evidence in the record to support the opinion of the administrative law judge, which was adopted by the board, that “[tjhrough confusion the claimant did not submit all the documentations [sic] required by the employer and she was terminated”, and that under the circumstances, claimant’s conduct did not rise to the level of misconduct. There is no evidence in the record to support this conclusion. First, evidence of confusion is simply not found in the instant record. Indeed, claimant in her brief admits that she never “expressly said she was confused about the rule”. Moreover, the board’s finding that because of confusion claimant “did not submit all the documentations [sic] required” (emphasis added) is not supported by the evidence. Specifically, this statement by the board implies that claimant submitted some required documentation and merely failed to submit other required documentation. However, all the evidence shows that claimant did not submit any of the required documentation. The board in its determination implicitly found that the Caledonian Hospital note was the only note received prior to claimant’s dismissal. The board, however, found that this document was unclear and written over. Accordingly, this document cannot provide substantial evidence to support the board’s finding that some of the required documentation was submitted to the employer.^[1] Since the conclusion that claimant’s conduct did not rise to the level of misconduct is based on a premise that is not supported by the board’s own factual findings, its decision cannot stand. Claimant’s unexcused failure to comply with a requirement to submit medical certification to document her period of absence constituted misconduct within the meaning of the Labor Law (see Matter of Darrisaw [Levine], 51 AD2d 1098 ). Consequently, I would reverse and remit the matter to the board for further proceedings not inconsistent herewith.