DENNIS MONTES v. BOARD OF REVIEW, DEPARTMENT OF LABOR and RAYMOUR & FLANNIGAN FURNITURE CO., INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1042-08T21042-08T2

DENNIS MONTES,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and RAYMOUR & FLANNIGAN

FURNITURE CO., INC.,

Respondents.

__________________________________________

 

Argued October 13, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Board of Review, Department of Labor, Docket No. 181,496.

Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorneys; Magdalena Barbosa and Ms. Hymowitz, on the briefs).

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

Respondent Raymour & Flannigan Furniture Co., Inc. has not filed a brief.

PER CURIAM

Appellant Dennis Montes appeals from the final decision of the Board of Review dated September 10, 2008, denying his application for unemployment benefits. Pursuant to N.J.S.A. 43:21-5(a), the Board found him ineligible to receive the benefits because he voluntarily left his employment without good cause attributable to work. He contends that he left work due to a work-related injury and that, as a result, he is entitled to the benefits pursuant to N.J.A.C. 12:17-9.3(a). We conclude that the record is sufficient to support the Board's findings and affirm.

Montes was employed as a driver with Raymour & Flannigan Furniture Co., Inc. He suffered a work-related injury on June 12, 2007, and his physician permitted him to return to work on July 11, 2007, with restrictions. Specifically, the doctor provided that Montes could stand and walk for thirty minutes with fifteen-minute breaks and that his push-and-pull limit was five pounds. As an accommodation, when Montes returned to work, his employer assigned him the job of quality inspector to examine furniture for defects. His supervisor testified that this job required that Montes look the furniture over and put stickers on it.

Montes testified that sometimes he would lift a sofa to see the bottom of it because no one else was around to lift it for him. According to Montes, he also did not take the required fifteen-minute breaks. He explained that he did not do so because his supervisors checked on him; but he also testified that no one told him he could not take the breaks.

Montes maintained that he developed problems with the medication he was taking for his injuries and complained that it made him dizzy, caused vomiting, and caused pain in his stomach. When he complained to his supervisor about these side effects, the supervisor recommended that he go back to his doctor. According to Montes, the doctor would not change the medication without authorization from the employer and told him that "his case was completed" and "he was not responsible" for Montes anymore. Montes was referred to an orthopedist who, according to Montes, also would not change the medication and told Montes he would have to return to his doctor. Montes testified that because he was not feeling well he decided to leave work. Without notice to his employer, he stopped going to work, and his employer was unable to reach him for three weeks. Finally, the employer sent him a letter terminating his employment on September 7, 2007.

After conducting a telephonic hearing on July 1, 2008, in which Montes and his supervisor testified, the Appeal Tribunal found that the employer had provided an appropriate work accommodation to Montes pursuant to the physician's orders. Although Montes complained about his medication, he did not obtain a second opinion or present the employer with a physician's request for further accommodation. The Appeal Tribunal further found that "[t]he claimant stopped reporting to work without further discussing his concerns with the employer who was willing to make additional accommodations for him if such need was certified by a physician." As a result, Montes was found to have "left work voluntarily without good cause attributable to such work" and was therefore disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a). The Board of Review affirmed this decision. In this appeal, Montes contends that he left work with good cause attributable to work and that his due process rights were violated.

Under New Jersey law, a person is disqualified from receiving unemployment benefits if he "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). A worker who voluntarily leaves work has the burden of proving that he did so "with good cause" attributable to his work in order to qualify for unemployment benefits. N.J.A.C. 12:17-9.1(c); Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). When a worker leaves work because of a work-connected disability, he "is not subject to disqualification for voluntarily leaving work, provided there was no other suitable work available which the individual could have performed within the limits of the disability." N.J.A.C. 12:17-9.3(a). However, in that instance, a medical certification is necessary "to support a finding of good cause attributable to work." N.J.A.C. 12:17-9.3(d).

The record contains sufficient credible evidence to support the Appeal Tribunal's finding that Montes "left work voluntarily without good cause attributable to such work." See N.J.S.A. 43:21-5(a). The employer accommodated the restrictions imposed by Montes's physician by giving him the position of quality inspector. The evidence does not establish that the employer deprived Montes of the necessary fifteen-minute breaks or forced him to violate the five pound push-and-pull restriction. While Montes claimed that he left work due to the side effects of the medication he was taking for his work-related injury, he offers no medical proofs to support his contention nor did he provide the certification required by N.J.A.C. 12:17-9.3(d). He sought no further accommodation from his employer.

The scope of our review of a decision by the Board of Review is limited. Brady v. Bd. of Review, supra, 152 N.J. at 210. "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." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We will uphold the agency's decision where it is supported by "substantial credible evidence." Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We find sufficient credible evidence to support the Board's decision in this case.

We find no merit in the additional arguments proffered by Montes. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-1042-08T2

October 27, 2009