CHARLES R. KASSAY v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2271-03T12271-03T1

CHARLES R. KASSAY,

Claimant-Appellant,

v.

BOARD OF REVIEW,

Respondent-Respondent.

________________________________

 

Submitted September 19, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Board of Review, Department of Labor.

Antholis & Courtney, attorney for appellant (William J. Courtney, of counsel; Jeffrey J. Mahoney, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Charles R. Kassay, appeals from a final determination of the Board of Review finding that he was disqualified for unemployment benefits under N.J.S.A. 43:21-5(a) and ordering that he refund benefits previously paid in the amount of $7,632. The Board's decision affirmed a decision of the Appeal Tribunal.

Claimant, who was employed as an inspector by Heritage Consulting Engineers, asserted that he was forced to retire because his hours of employment were reduced and he would no longer qualify for health benefits. He was then 62 years old and while employed by Heritage had heart surgery and contracted Lyme's disease. In view of his health problems, he contended, it was essential that he have a job with health benefits. He testified that he would not have left his job if his hours had not been cut. Leo Santuasso, President of Heritage, testified that claimant had voluntarily retired. He asserted that claimant had applied for Social Security benefits and approached Santuasso about working reduced hours. Santuasso offered to permit claimant to work six days per month, but the latter declined the offer.

The claims examiner found that claimant was eligible for benefits. Heritage appealed, however, and the Appeals Tribunal determined that he had left work without good cause attributable to the work and therefore was disqualified for benefits under N.J.S.A. 43:21-5(a). As we have noted, the Board of Review affirmed, and claimant was directed to return the $7,632 in benefits paid to him after the examiner's initial decision.

We have concluded that the Board's decision should be affirmed. Claimant left work essentially for personal reasons. He could have continued working for Heritage at reduced hours but chose to leave his position. Where, as here, a worker gives up partial employment for no work at all he is not entitled to receive unemployment benefits. Zielenski v. Board of Review, 85 N.J. Super. 46, 52 (App. Div. 1964).

We disagree with claimant that we should depart from the principles set forth in Zielenski. We also reject his further contention that the Board's decision is inconsistent with Brady v. Board of Review, 152 N.J. 197, 218-19 (1997), where our Supreme Court held that workers who elect early retirement may be entitled to unemployment benefits if they establish that layoffs are imminent and they would have suffered a significant economic harm if they did not retire. The Brady case is not applicable to a situation, such as the one presented in this case, where the employee elects to retire rather than continue at a reduced salary. There is no evidence in this case that claimant would have suffered a substantial economic loss had he elected not to retire. He suffered a loss by retiring. When he left, he was receiving Social Security benefits but he had other income. Had he continued with Heritage, he could have collected his Social Security benefits and received some income, while seeking other employment. Brady has no application to this case.

We normally will reverse the decision only if it is arbitrary, capricious or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole. In re Taylor, 158 N.J. 644, 657 (1999) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Claimant's arguments are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(D). We add only that there was an ample basis in the record on which to conclude that claimant was statutorily ineligible under N.J.S.A. 43:21-5(b) to receive unemployment benefits. In other words, the Board's findings here are fully supported by credible evidence.

 
Affirmed.

(continued)

(continued)

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A-2271-03T1

October 11, 2005