MYRA BOCCIA v. BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0399-07T30399-07T3

MYRA BOCCIA,

Appellant,

v.

BOARD OF REVIEW, NEW JERSEY

DEPARTMENT OF LABOR AND

WORKFORCE DEVELOPMENT and

WEGMANS FOOD MARKETS, INC.,

Respondent.

_________________________________________________

 

Submitted September 10, 2008 - Decided

Before Judges A. A. Rodr guez and Payne.

On appeal from a Final Decision of the Board

of Review, New Jersey Department of Labor and Workforce Development, Docket No. 148,820.

Myra Boccia, appellant, filed a pro se brief.

Anne Milgram, Attorney General, attorney for

respondent Board of Review, New Jersey Department of Labor and Workforce Development (Ellen A. Reichart, Deputy Attorney General, on the brief).

Dechert LLP, attorney for respondent Wegmans

Food Markets, Inc. (Matthew V. DelDuca and

Terry D. Johnson, on the brief).

PER CURIAM

Claimant, Myra Boccia, appeals from a final decision of the Board of Review, denying her unemployment benefits on the ground that she quit her employment without good cause attributable to the work. See N.J.S.A. 43:21-5(a).

Claimant was actively employed by Wegmans Food Markets, Inc. at a store located in the Princeton area from June 25, 1999 to October 7, 2006 in various capacities on a part-time basis. Although a complete listing of claimant's work positions is not included in the record, it appears that she was initially employed in Wegmans' sub shop. Thereafter, she worked in the photo department and as a file clerk in the personnel department. In the period immediately prior to her October departure from work, she had been employed for six weeks in pricing and for three weeks in reshelving unwanted merchandise.

On October 7, 2006, claimant was placed on short-term disability as the result of chronic obstructive pulmonary disease (COPD) and osteoporosis. Her doctor released claimant for work commencing on March 19, 2007, with a ten-pound weight restriction and a requirement that she stand no more than three and one-half hours at a stretch. The form also stated "Limited ambulation needed due to arthritis. Limited due to COPD." On March 15, 2007, claimant was offered a position bussing tables in the caf , which she rejected because it required work at night, and claimant's husband did not drive at night. Plaintiff stated at the hearing conducted in the matter that at the inception of her employment, she listed her work availability as ending at 6:00 p.m. and that the document stating her availability could be found in her personnel file. Wegmans does not contest this fact. Following her rejection of the position, claimant was informed that she should complete her twenty-six weeks of disability leave while an effort was made to find her another position.

On April 5, 2007, claimant was offered a position in customer service maintenance, which involved maintaining the employee break room. She was to sweep the floor, wipe tables, and clean the refrigerator and microwave. However, claimant declined the position, stating that she could not do cleaning. She then quit. Almost one month later, on April 30, 2007, claimant produced a doctor's note stating: "Cannot do manual labor. Cannot lift greater than 5 pounds. Cannot do cleaning or mopping."

The Wegmans' employee manual states that upon return to work from disability before available leave runs out, "you will be returned to the same or to an equivalent position." Moreover, N.J.S.A. 43:21-5(c) provides that an individual shall be disqualified for benefits

If it is found that the individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the director or to accept suitable work when offered, or to return to the individual's customary self-employment (if any) when so directed by the director. . . .

(1) In determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to health, safety and morals, the individual's physical fitness and prior training, experience and prior earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the available work from the individual's residence. . . .

(Emphasis added.)

In construing this provision, the Supreme Court has held that "[i]t is clear that one need only apply for and accept suitable work." Wojcik v. Bd. of Review, 58 N.J. ___, 345 (1971).

At the time of her return from disability, claimant was almost 64 years of age. She wore a brace on her back, and she suffered from arthritis, osteoporosis and COPD. Claimant had never previously been required to perform cleaning work, and it is reasonably inferable from the initial note supplied by claimant's doctor that such work would not be within her physical capabilities. The accuracy of the inference is demonstrated by the doctor's second note, submitted after claimant left her employment. As a consequence, we do not regard the job offered to claimant to have been either "suitable," as required by statute or "equivalent," as guaranteed by Wegmans, to her prior employment duties. We therefore find that the Board's determination that claimant was disqualified from receipt of unemployment benefits to lack factual foundation. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Reversed.

(continued)

(continued)

5

A-0399-07T3

November 7, 2008