Lo Dolce v. Regional Transit Service, Inc.

77 A.D.2d 697, 429 N.Y.S.2d 505, 1980 N.Y. App. Div. LEXIS 12425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1980
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed May 24, 1979, as amended by decision filed September 25, 1979. The record establishes beyond any dispute that the claimant was discharged because of lost time due to an employment related accident. Such a dismissal explicitly violates section 120 of the Workers’ Compensation Law, which states, in pertinent part: "It shall be unlawful for any employer * * * to discharge or in any manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer”. The employer’s assertion before the board that proof as to its policy of discharging any employee because of excessive absenteeism should be permitted was properly rejected by the board as irrelevant to the treatment of this employee. In this case the discharge was solely because of the work-related accident and the underlying policy as to absenteeism expressly included such incidents. The employer has failed to establish any error of law on the part of the board and the decision appealed from is supported by substantial evidence in the record as a whole. Decision affirmed, with costs to the Workers’ Compensation Board against the employer. Greenblott, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.