JOEL H. SCHARTOFF v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0369-05T50369-05T5

JOEL H. SCHARTOFF,

Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and TOTALSOURCE II, INC.,

Respondents-Respondents.

__________________________________

 

Submitted September 5, 2006 - Decided September 14, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Board of Review, Department of Labor, Docket No. 68340.

Lawrence S. Grossman, attorney for appellant.

Anne Milgram, Acting Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Jennifer B. Pitre, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Joel H. Schartoff (Schartoff) appeals from the decision of the Board of Review affirming the denial of unemployment compensation by the Appeal Tribunal on the ground that Schartoff left work voluntarily without good cause attributable to the work. We affirm.

Schartoff had been employed as an office administrator for ADP TotalSource Incorporated-Leaf, Saltzman, Manganelli, Pfeil & Trendler, LLP (TotalSource), a firm for which he worked forty years, until September 17, 2004, when he went out on a leave of absence for heart surgery. That leave of absence continued until December 31, 2004. On January 2, 2005, he applied for and was granted unemployment benefits. However, after receiving such benefits for the weeks ending January 8 and 15, 2005, the Deputy Director, Division of Unemployment Insurance, held Schartoff disqualified for benefits because he voluntarily left his employment for a personal reason. A demand for return of the benefits was made on March 4, 2005. Schartoff then appealed the determination and a hearing was conducted by the Appeal Tribunal on June 2, 2005, at which Schartoff testified under oath. The employer did not participate.

After discussing the appeals before her, the Appeals Examiner made the following findings of fact:

The claimant worked for the above-named employer as an office administrator, from 1964 through 09/17/04, when he began an approved leave due to heart surgery. The claimant's leave ended on 12/31/04. The claimant did not return to work nor did he contact the employer for work at the expiration of the leave of absence.

Prior to the expiration of his leave, the employer did not inform the claimant that work was not available for him. The claimant did not contact the employer for work upon his recovery.

The claimant commuted one hundred and ten miles (110) round trip to work everyday for the last six (6) years of his employment. The claimant no longer wanted to commute that distance to work, due to his health condition.

The Appeals Examiner concluded that "[t]he claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 12/26/04 in accordance with N.J.S.A. 43:21-5(a)."

Schartoff contends on appeal that (1) there was no job left for him when he wanted to return to work, (2) the Board of Review did not make specific findings to disqualify him from benefits, and (3) he was eligible for unemployment benefits when it was impossible for him to drive 110 miles to and from work due to his illness.

Our review of agency action is limited. Brady v. Board of Review, 152 N.J. 197, 210 (1997). We will not reverse an agency decision unless it was "arbitrary, capricious or unreasonable" or it is "not supported by substantial credible evidence in the record as a whole." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. V. State Civil Serv. Comm'n, 93 N.J. 384, 391 (1983). We are obliged to accord deference to administrative agency fact finding. Doering v. Bd. Of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). If we find sufficient credible, competent evidence in the record to support the agency's conclusions, then we must uphold the agency's findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 585 (1988); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 29 (1981).

Arbitrary and capricious action of administrative bodies means willful and unreasoning action without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.

[Worthington v. Fauver, 88 N.J. 183, 204-05 (1982).]

The following testimony was elicited from Schartoff at the hearing:

Q. [Y]ou contacted them for work at the end of your disability?

A. I didn't.

. . . .

Q. [D]id you contact the employer at the end of your sick leave to request any extended leave of absences?

A. [N]o I did not.

. . . .

Q. [Did] you ever tell Mr. Tenbler that you intended to return to work after your recovery sir?

A. [N]o I didn't.

Q. Okay did . . . Mr. Tenbler ever tell you that there was no work for you if you decided to come back to work?

A. No he did not.

Q. Okay. So you assumed because other people were doing your job that there was no work for you?

A. That is correct.

. . . .

Q. Okay so after December 31st of 04 you had no contact with the employer about any additional leave or . . . about whether or not they have any work for you?

A. That's correct.

. . . .

Q. [D]id you ever tell the employer that you were never coming back to work because you didn't want to make the commute?

A. I did not I could not make the 110 miles commute yes.

This testimony from Schartoff is substantial credible evidence that supports the findings of fact made by the Appeals Examiner. It is well settled that the claimant has the burden of establishing entitlement to unemployment compensation benefits. Combs v. Bd. of Review, 269 N.J. Super. 616, 624 (App. Div. 1994). An employee who leaves work voluntarily has the burden to prove that he or she did so for good cause attributable to the work. N.J.S.A. 43:21-5(a); Brady, supra, 152 N.J. at 218; Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962).

Here, Schartoff has failed to prove that that his job had been eliminated. Supposition and speculation do not establish the loss of a job. Schartoff had a duty to contact his employer at the end of his leave of absence and attempt to return to work. He did not do so. The Appeals Examiner, and thus the Board of Review, made adequate findings of fact to support the denial of benefits. Furthermore, Schartoff failed to prove his inability to drive the 110-mile round trip due to his health with competent medical evidence, as was his burden.

Affirmed.

 

(continued)

(continued)

6

A-0369-05T5

 

September 14, 2006