Claim of Tomlin v. Asplundh Tree Expert Co.
The claimant, a site manager for 23 years, began experiencing chest pains in February 1984. His employer granted him a medical leave and requested documentation. The claimant's treating physician, Patrick McAndrew, diagnosed essential hypertension, left ventricular hypertrophy, and chest pain of undetermined origin. The employer then used a disability claim form as a claim for a self-administered salary continuation plan, paying benefits under it. After an examination by the employer's physician, John Walters, who found no organic heart disease, the employer terminated the claimant, considering his absence a voluntary termination due to lack of a "bona fide" disability. The claimant subsequently filed for statutory disability benefits and a claim for discriminatory discharge with the Workers’ Compensation Board, alleging a violation of Workers’ Compensation Law § 241 for retaliation. The Board asserted jurisdiction, found discrimination, but reduced damages due to the claimant's failure to actively seek employment. The employer appealed, arguing lack of jurisdiction and insufficient evidence, but the decision was affirmed.