DAVID S. EBERHART v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3121-05T23121-05T2

DAVID S. EBERHART,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

- Respondent,

and

WYNDHAM GARDEN HOTEL,

Respondent-Respondent.

___________________________________________________________

 

Submitted: September 12, 2006 - Decided September 28, 2006

Before Judges Kestin and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. BR-91,515.

David S. Eberhart, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Michael J. Haas, Assistant Attorney General, of counsel; Todd A. Wigder, Deputy Attorney General, on the brief).

No brief was filed by any other party.

PER CURIAM

Petitioner David S. Eberhart applied for unemployment benefits, asserting he failed to return to his employment because the stress of the position exacerbated his bi-polar disorder. He appeals the final decision of the Department of Labor and Workforce Development Board of Review (the Board) that rejected his application for unemployment benefits concluding his failure to return to work was voluntary, without good cause attributable to his employment and, further, requiring him to refund $2,506 in benefits paid. See N.J.S.A. 43:21-5(a) and N.J.S.A. 43:21-16(d)(1). We affirm.

Petitioner was a supervisor and server in the caf of the Wyndham Gardens Hotel. His last paycheck, dated January 7, 2005, evidences he last worked at the Wyndham the week ending December 31, 2004. Petitioner stated he was admitted to Greystone Park Psychiatric Hospital on February 9, 2005, and remained hospitalized until March 24, 2005. The hospital's "Interdisciplinary Discharge and Educational Aftercare Plan," given to petitioner at discharge, noted he should avoid situations which "may trigger [his bipolar condition] to escalate," including, "[t]aking on too much work, getting stressed, and not keeping up with aftercare."

Thereafter, he engaged in aftercare at Newton Memorial Hospital. In a letter dated September 6, 2005, his treating physician, Steven Sarner, M.D., stated, "I feel David is able to return to work and fulfill his normal job duties."

The Deputy Director, Division of Unemployment and Disability Insurance (Deputy), found petitioner ineligible for benefits, denying his claim. Petitioner appealed and testified at the hearing held by the Appeal Tribunal, explaining he did not return to the Wyndham upon his discharge because "I needed to find a different kind of employment. Plus a job that paid well and a doctor at . . . Greystone Hospital said that I shouldn't return to that sort of work that I was doing" due to stress.

Jean Volcy, the HR accounting manager of the Wyndham, also testified and presented correspondence he sent to petitioner dated April 1, 2005. In that letter, he advised of the employer's adjustment of petitioner's employment status from full-time to part-time and the need to call the Wyndham by April 8, 2005, to avoid termination. After petitioner made no contact, Volcy sent a letter of termination, encouraging petitioner to apply for future available open positions.

The Appeals Examiner modified the Deputy's determination, concluding petitioner did not intend to leave the job. She found petitioner was not discharged from his doctor's care when the termination became effective and his illness prevented him from contacting his employer. Therefore, he was not disqualified from claiming unemployment benefits. The employer appealed to the Board.

The Board accepted the facts as developed by the Appeals Examiner, except "the claimant did not contact the employer after February 9, 2005[,] because he believed that stress from work may have contributed to his disability and because he wanted a better paying job." The Board reversed the determination of the Appeals Tribunal finding:

[b]ecause the claimant admits that he did not return to work as he wanted a better paying job, and because he believed the stress from his work may have contributed to his medical condition, it is clear the claimant did not intend to return to work when he was released by his physician. The claimant's decision not to return to work because he believed that the work contributed to his disability is not supported by any medical documentation. Additionally, the claimant's leaving because he wanted a job at a higher paying salary is without good cause attributable to such work. Hence[,] the claimant is disqualified for benefits from February 6, 2005, in accordance with N.J.S.A. 43:21-5(a).

It is from this decision that petitioner appeals. An individual is disqualified to receive unemployment benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work. . . ." N.J.S.A. 43:21-5. The Department of Labor administrative regulations provide, in pertinent part:

(b) An individual who leaves a job due to a physical and/or mental condition or state of health which does not have a work-connected origin but is aggravated by working conditions will not be disqualified for benefits for voluntarily leaving work without good cause "attributable to such work," provided there was no other suitable work available which the individual could have performed within the limits of the disability. . . .

(c) [A]n individual who has been absent because of a personal illness or physical and/or mental condition shall not be subject to disqualification for voluntarily leaving work if the individual has made a reasonable effort to preserve his or her employment, but has still been terminated by the employer. A reasonable effort is evidenced by the employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment.

(d) When an individual leaves work for health or medical reasons, medical certification shall be required to support a finding of good cause attributable to work.

[N.J.A.C. 12:17-9.3(b), (c), and (d).]

In analyzing the Board's decision, we remain mindful that "[t]he grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature's goals." Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). A "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility," ibid., such that we defer to "[t]he agency's [statutory] interpretation . . . provided it is not plainly unreasonable." Merin v. Maglaki, 126 N.J. 430, 437 (1992). "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Board of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App.Div.1985)). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210. If the Board's factual findings are supported "by sufficient credible evidence, courts are obliged to accept them," Ibid. (quoting Self v. Board of Review, 91 N.J. 453, 459, (1982).

Applying that standard here, we are satisfied the record supports the Board's determination that petitioner was cleared by his doctor to resume employment but was determined to seek more financially lucrative and fulfilling work. We cannot say that the Board's decision was unsupported by the record or so clearly mistaken that intervention by us is demanded in the interest of justice. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001). We are therefore required to respect the Board's expertise and defer to the Board's considered determination. Ibid; Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998).

Affirmed.

 

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A-3121-05T2

September 28, 2006