WILLIAM ROHBACK 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NOT FOR PUBLICATION WITHOUT THE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-5974-04T15974-04T1

WILLIAM ROHBACK,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and DARLING

INTERNATIONAL, INC.

Respondents.

__________________________________________________

 

Argued May 1, 2006 - Decided May 25, 2006

Before Judges Fall and C.S. Fisher.

On appeal from Decision of the Board of Review, Docket No. 60,540.

William Rohback, appellant, argued the cause pro se.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

PER CURIAM

Appellant William Rohback (appellant) had been employed by Darling International, Inc. as a truck driver since March 1974. He submitted his resignation in December 2004 because he believed he was incapable of passing a physical examination required by his employer. He now appeals the final agency decision that denied his application for unemployment benefits.

The record indicates that in July 2004, appellant suffered a non-work-related rib injury and collected temporary disability benefits from then through November 31, 2004. He received medical clearance to return to work on December 1, 2004. However, by that time, appellant's Department of Transportation (DOT) medical certificate had expired. As a result, Darling International advised appellant that he was obligated to submit to a physical examination and could not return to work on December 1, 2004 or any time thereafter without a medical certificate.

At the hearing on his application for unemployment benefits, appellant acknowledged that he did not submit to the physical examination when requested and that he did not return to work. He claimed that because he was required to obtain a DOT medical certificate and because he believed he would be unable to pass the examination due to his vision, hearing, diabetes and heart problems, appellant resigned his position with Darling International. He argues that as a result of these circumstances, his resignation was not truly voluntary.

The appeal tribunal, after considering these circumstances, concluded that appellant had failed to return to work because of a medical condition that was neither caused nor aggravated by his work, and that his leaving the employment of Darling International was voluntary and without good cause attributable to the work. The Board of Review affirmed the appeal tribunal.

N.J.S.A. 43:21-5(a) provides that an individual shall be disqualified from receiving 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 and works four weeks in employment." Although this statute does not define good cause, "our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983). An employee who has left work voluntarily, has the burden of proving that he did so with good cause attributable to the work. Brady v. Board of Review, 152 N.J. 197, 218 (1997).

The hearing officer, appeal tribunal and Board of Review proceeded on the assumption that appellant had not claimed there was a causal connection between appellant's physical condition that prevented him from passing a physical examination and the work he had performed for his employer in the past. If that assumption was correct, the Board of Review's conclusion would be correct. See N.J.A.C. 12:17-9.3(b) ("when a non-work connected physical and/or mental condition makes it necessary for an individual to leave work due to an inability to perform the job, the individual shall be disqualified for benefits for voluntarily leaving work.").

However, appellant contended at oral argument that the medical conditions which compelled him to resign were brought about because of work conditions encountered during his many years of employment with Darling International as a truck driver. We offer no view of that contention because there was no evidence in the record to either support or refute it. That is, the record is silent on this issue, a consequence undoubtedly resulting from appellant's pro se status and lack of familiarity with agency procedures. In the interest of fairness, we will remand for a full consideration of appellant's contention that his inability to pass a physical examination was work-related, a contention which appellant has the burden of proving.

Reversed and remanded. We do not retain jurisdiction.

 

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A-5974-04T1

May 25, 2006