DANIEL H. RAFFERTY 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NOT FOR PUBLICATION WITHOUT THE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-3042-04T33042-04T3

DANIEL H. RAFFERTY,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and TOWNSHIP OF

MORRIS,

Respondents-Respondents.

_______________________________________________________________

 

Submitted February 8, 2006 - Decided

Before Judges Wecker and Graves.

On appeal from a Final Administrative Decision

of the Board of Review, Department of Labor,

Division of Unemployment Insurance, Docket No.

33,774.

Daniel H. Rafferty, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent Board of Review (Allan J. Nodes,

Deputy Attorney General, on the statement in

lieu of a brief).

Laufer, Knapp, Torzewski & Dalena, attorneys

for respondent Township of Morris (Stephen E.

Trimboli, of counsel and on the brief;

Meredith Messing, on the brief).

PER CURIAM

Claimant Daniel H. Rafferty appeals from a final agency decision of the Board of Review (the Board) which upheld a determination by the Appeal Tribunal disqualifying him for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). We affirm.

Claimant was employed as a police officer by the Township of Morris from August 7, 1989, through October 31, 2003, when he terminated his employment to begin collecting a disability pension. A Deputy to the Director of the Division of Unemployment Insurance had initially decided that claimant was eligible for unemployment benefits beginning April 4, 2004. But the employer appealed, and on October 18, 2004, the Appeal Tribunal determined that claimant was disqualified for benefits because "he left work voluntarily without good cause attributable to such work."

The Appeal Tribunal decision included the following findings and conclusions:

In this case, the claimant argues that he had to leave his job because of a health condition, caused by and aggravated by his work. The claimant did not discuss his condition with his superior nor did he provide his superior with any medical documentation, prior to leaving his work. All of the medical documentation submitted to this Appeal Tribunal was dated well after the claimant left his work. Further, the claimant's workers' compensation claim was denied as the claimant's condition was not work related. . . . Therefore, the claimant's contentions are rejected. The claimant's leaving his work to collect a disability pension is considered a personal reason and not connected to the work itself. Hence, the claimant is disqualified for benefits as of 10/26/03, under N.J.S.A. 43:21-5(a), as [he] left work voluntarily without good cause attributable to such work.

Claimant now argues that he is entitled to receive unemployment benefits because he did not leave work voluntarily without good cause attributable to the work:

I did not leave work voluntarily, as my lawsuit against the Township indicates. The Township Police Department and numerous officers within the department, engaged in a conspiracy against me. This took place over the course of several years and continuous to the present. This action resulted in my constructive termination from the Police Department, and my being treated for major depression and suicidal intention. The harassment and retaliatory conduct included the filing of departmental charges and [ongoing] hostile interactions towards me. The harassment, retaliation and the conspiracy has been [ongoing] and continuous from 1997 [through] the present, with the most recent acts resulting in my forced resignation and constructive termination. Please refer to the attached complaint.

Although claimant has provided us with several pages of a complaint that he apparently filed, alleging wrongdoing by members of the Morris Township Police Department, and others, this information was not produced during the Appeal Tribunal hearings. It is not, therefore, part of the record, and it cannot be considered on appeal. See R. 2:5-4(a); Rudbart v. Bd. of Review, 339 N.J. Super. 118, 122-23 (App. Div. 2001).

The burden of establishing entitlement to unemployment compensation benefits is on the claimant. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964). "[A] claimant shall be disqualified from receiving unemployment compensation benefits '[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . .'" Brady v. Bd. of Review, 152 N.J. 197, 213 (1997) (quoting N.J.S.A. 43:21-5(a)) (alteration in original). In applying N.J.S.A. 43:21-5(a), a court must distinguish between a voluntary quit with good cause attributable to the work and, on the other hand, a voluntary quit without good cause attributable to the work. Id. at 213-14. "Good cause" is "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b); see also Zielenski, supra, 85 N.J. Super. at 52 (explaining good cause is "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed."). In Domenico v. Bd. of Review, we set forth the factors to be considered in determining the existence of good cause in a given matter:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[ 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotation marks and citations omitted).]

Here, claimant alleges that he "had to leave his [employment] because of a health condition, caused by and aggravated by his work." An individual who leaves work because of a disability or for health reasons which have a work-connected origin is not subject to disqualification for voluntarily leaving work, if he or she can establish "that working conditions [were] so unsafe, unhealthful, or dangerous as to constitute good cause attributable to such work." N.J.A.C. 12:17-9.4. When an individual leaves work for health or medical reasons, however, "medical certification shall be required to support a finding of good cause attributable to work." N.J.A.C. 12:17-9.3(d); see also Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (affirming Board's denial of benefits "since the only medical evidence supporting Wojcik's claim was his doctor's equivocal statement that his work 'may' have aggravated his condition."); Israel v. Bally's Park Place, Inc., 283 N.J. Super. 1, 5 (App. Div. 1995) (claimant met standard of good cause "by showing, through uncontroverted medical evidence, that her [alcoholism] has been and will be aggravated by the casino environment."), certif. denied, 143 N.J. 326-27 (1996); Brown v. Bd. of Review, 117 N.J. Super. 399, 404-05 (App. Div. 1971) (claimant ineligible for unemployment compensation benefits where there was a lack of adequate competent evidence and no medical testimony to support his allegation that his work duties aggravated his diabetic condition).

Our role in reviewing the decision of an administrative agency is limited. We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies. In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210-11. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions by administrative agencies carry with them a strong presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

In the present case, the record fully supports the Board's decision. Although there is no question that claimant received a disability pension, the physician's report from Dr. Burns dated October 7, 2003, focuses only on the nature and extent of the disability ("persistent symptoms of depression and anxiety"). The question of whether claimant's disability had a work-connected origin was addressed by Dr. Gallina, a psychiatrist who examined claimant on behalf of the employer. On August 7, 2003, Dr. Gallina examined the claimant to determine his neuropsychiatric status. In his written report dated August 11, 2003, Dr. Gallina stated the following:

It is, therefore, my medical opinion, with reasonable medical certainty, that Mr. Rafferty's current psychiatric difficulties are causally related to administrative conflicts, particularly alleged conflicts between himself and the Chief. Many of these conflicts appear to be personal conflicts between himself and his current Chief of Police, and Mr. Rafferty readily acknowledges that they do not get along well together on a personal basis. Based on this evaluation, however, Mr. Rafferty's current condition is not related objectively to his job as a police officer. He states that he loves the job, does well on the job, and indeed wants to return to the job. Were it not for his perception of personal conflicts between himself and the Chief of Police, he states that his adjustment otherwise to the job is good. There is, therefore, no peculiar aspect to his occupation as a police officer which has contributed to his current psychiatric difficulties.

It is also, therefore, my medical opinion, with reasonable medical certainty, that outpatient [counseling] and/or psychopharmacological treatment may be indicated for Mr. Rafferty, but such treatment is not causally related to any particular or peculiar aspects of being a police officer. Mr. Rafferty clearly indicates that the objective aspects of being a police officer are most agreeable to him, and are not a source of his current difficulties. His treatment, therefore, is related to personal conflicts that he has had with his Chief of Police, whom he does not like. Although Mr. Rafferty does not like the merited criticism directed toward him by the Chief of Police, he indicates that he has no emotional difficulty in performing the inherent responsibilities of a police officer.

In view of Dr. Gallina's determination, the Board's decision to affirm the ruling of the Appeal Tribunal was not arbitrary, capricious, or unreasonable.

 
Affirmed.

(continued)

(continued)

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A-3042-04T3

March 6, 2006