WILLIAM G. FENNIMORE v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4114-06T34114-06T3

WILLIAM G. FENNIMORE,

Appellant,

vs.

BOARD OF REVIEW and

GEMINI BUILDING COMPANY,

Respondents.

____________________________________________________________

 

Submitted October 31, 2007 - Decided

Before Judges Cuff and Lihotz.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 133,627.

Anthony J. Harvatt, II, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Eileen A. Reichart, Deputy Attorney General, on the brief).

Gemini Building Company did not file a brief.

PER CURIAM

Appellant William Fennimore appeals from a final decision by the Board of Review (the Board), Department of Labor, which affirmed a determination by an Appeal Tribunal (Tribunal) that he was disqualified from receiving unemployment compensation benefits because he left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), and further required him to refund the amount of benefits previously paid, N.J.S.A. 43:21-16(d)(1). We affirm.

Fennimore worked as a mechanic for Gemini Building Company from June 6, 1999 to June 16, 2006. He suffered an accident not related to his employment causing his temporary disability. Fennimore's treating physician cleared him to return to work on July 25, 2006. Fennimore testified that he telephoned his supervisor Mike Rubis on July 17, 20, and 26, 2006. He attached copies of his telephone bill covering this period to his merits brief. These records were not presented to the Tribunal or the Board. The telephone bill records one seven-second call to Gemini's business number on July 20, 2006. Fennimore stated because he did not receive a return call, he assumed he was terminated and did not report to work. Fennimore insisted that had Rubis called him, he would have reported to work.

Rubis testified that he and Fennimore were friends and their families socialized together. Although Fennimore's wife left a message on Rubis's cellular telephone when Fennimore suffered his injury, Fennimore did not call him or leave a message at the office. Rubis explained Fennimore had "five or six" telephone numbers for him and the business. Fennimore lived approximately one mile from Rubis, who operated the business from his home, yet Fennimore did not go to his former place of business to check on the status of his job. Rubis asserted Fennimore's job remained available.

Fennimore filed an application for unemployment benefits on July 30, 2006, which established a weekly benefit of $402. He collected benefits totaling $4,824 for the weeks ending August 5, 2006 to October 21, 2006.

The Deputy Director of the Division of Unemployment and Disability Insurance (Deputy) determined Fennimore was disqualified for benefits and that he must refund the benefits paid. Fennimore appealed. After the Tribunal's telephonic hearing on December 14, 2006, it affirmed the Deputy's determination that Fennimore was "disqualified for benefits as he left work voluntarily without good cause attributed to such work" finding Fennimore's efforts were insufficient to maintain his employment. The Tribunal ordered Fennimore to refund the benefits paid. The Board then affirmed the Tribunal's decision.

N.J.S.A. 43:21-5(a) disqualifies a claimant for unemployment 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, . . . and has earned . . . at least six times the individual's weekly benefit rate . . . ." An employee who has left work voluntarily has the burden of proving that he or she did so with good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). We have observed that "[w]hile the 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. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).

In defining the circumstances that meet that requirement, we have said "the test is one of ordinary common sense and prudence." Id. at 288. Further, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. This test is fact-sensitive. As a result, when the agency's findings of fact are challenged on appeal, we will defer to it so long as there is sufficient credible evidence in the record to support its findings.

On appeal, Fennimore challenges the factual findings upon which the Board's decision rests. To support his argument, Fennimore attaches telephone records that were not presented to the Tribunal or the Board. We "will not ordinarily consider evidentiary material that is not in the record below," Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007), and must confine our review to the record before the agency. R. 2:5-4. In an appeal from a state administrative agency determination, the record may be supplemented upon motion "if it appears that evidence unadduced in the proceedings below may be material to the issues on appeal." R. 2:5-5(b). Fennimore has not filed a motion to supplement the record on appeal. Nevertheless, we note that the documents now provided fail to provide sufficient credible evidence to set aside the agency's determination.

In our review of the decision of an administrative agency, we defer to the agency's findings when they are supported by sufficient credible evidence in the record, and we defer to the agency's judgment so long as it is not arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). A "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility." Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). "'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, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

Applying that standard here, we are satisfied the record supports the Board's determination that Fennimore had the means and ability to contact his employer to seek continued employment. He did little in that regard. The documents he now attempts to add reflect only a seven-second telephone call as the other identified calls are not to Gemini's business number. Other than the telephone call, Fennimore admits he took no other action to return to work.

Based on this record, 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 Atl. City, 152 N.J. 532, 540 (1998).

Affirmed.

(continued)

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A-4114-06T3

December 24, 2007