Claim of Campbell v. McMillan Book Co.

Appeal from an amended decision of the Workers’ Compensation Board, filed January 31, 1990, which adhered to its prior [872] decision ruling that the discharge of claimant’s decedent was not in retaliation for having filed a compensation claim. In our view, claimant failed to meet her burden of proving that decedent’s discharge was in retaliation for his saying that he intended to file a disability claim (see, Matter of Solomon v Cohn, Glickstein, Lurie, Ostrin & Lubell, 97 AD2d 561). The record supports the conclusion by the Workers’ Compensation Board that decedent was discharged for a valid business purpose because he failed to timely file a form required by the employer justifying his absence even after he was notified that it was overdue, told that he would be discharged if he failed to file the form and given a five-day extension to file the form. Under the circumstances, the determination that decedent’s employment was not terminated in retaliation for the filing of a claim for disability benefits is supported by substantial evidence and must be upheld (see, Matter of Durivage v Diamond Intl. Corp., 134 AD2d 649). Claimant’s remaining contentions have been considered and found to be lacking in merit. Amended decision affirmed, without costs. Weiss, J. P., Yesawich, Jr., Levine, Mercure and Harvey, JJ., concur.