OSCAR F. PLANAS v. BOARD OF REVIEW DEPARTMENT OF LABOR and ON CALL INVALID COACH INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5275-08T3

OSCAR F. PLANAS,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

ON CALL INVALID COACH, INC.,

Respondents.

_____________________________

September 21, 2010

Submitted September 13, 2010 - Decided

Before Judges Reisner and Sabatino.

On appeal from the Board of Review, Department of Labor, Docket No. 216,719.

Dwight H. Simon Day, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Oscar F. Planas appeals from a final decision of the Board of Review, dated May 28, 2009, disqualifying him for unemployment benefits, pursuant to N.J.S.A. 43:21-5(b), for misconduct connected with his work. We affirm.

I

Planas, who worked for a medical transportation service, was terminated from employment after he and a co-worker failed to pick up a nursing home patient and transport him to a dialysis appointment. Briefly, between 2:45 and 3:00 p.m. on November 23, 2008, Planas and the co-worker left their employer's premises with instructions to pick up the patient at a facility located a fifteen to thirty minute drive away. At about 5:00 p.m., the dialysis facility called the employer to report that the patient had not arrived and the nursing home called to report that no one had picked up the patient. On November 24, 2008, the employer fired Planas. A confirming letter, dated November 26, 2008, cited his failure to pick up the nursing home patient, in addition to his repeated lack of cooperation with dispatchers, his unwillingness to take on work assignments, and his failure to pick up another patient the previous week.

At a March 24, 2009 hearing before the appeals examiner, the parties offered testimony focusing on the nursing home incident. Planas and his co-worker testified that the dispatcher sent them out on the call without telling them the patient's name or room number and did not respond to their subsequent calls seeking that information. The dispatcher testified that he provided the information before they left the office and Planas did not call in to report any alleged problem in finding the patient. The employer also provided testimony that in January 2008, Planas and all other employees had received a memorandum along with their paychecks, specifically instructing them to notify the dispatcher when they arrived at a pick-up location and at every subsequent step in their transportation of a patient. A copy of the memo was admitted in evidence. Planas testified that he did not remember receiving the memo.

In a March 25, 2009 decision, the appeals examiner found that Planas and his co-worker gave illogical and contradictory testimony and generally were not credible witnesses.1 On the other hand, he found the employer's witnesses to be entirely believable. Based on the credible testimony, the examiner found: "The claimant arrived at the pickup location and made no attempt to pickup the patient or contact the employer for approximately one and one half hours." The examiner concluded that the employer terminated Planas for "misconduct connected with the work," thus disqualifying him for benefits. See N.J.S.A. 43:21-5(b).

The Board rejected Planas' appeal, concluding that the record supported the examiner's decision. Although the co-worker, who was also fired, received unemployment benefits, the Board distinguished his situation, because in that other case the employer failed to provide information requested by the deputy and then failed to appeal the deputy's decision granting benefits to the co-worker.

II

On this appeal, our review is limited to determining whether the agency's decision is supported by substantial credible evidence in the record and whether it is consistent with applicable law. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Smith v. Bd. of Review, 281 N.J. Super. 426, 434-35 (App. Div. 1995). We defer to credibility determinations made by the examiner who heard the testimony, particularly where the agency head adopts those credibility findings. See State v. Locurto, 157 N.J. 463, 474 (1999).

After reviewing the entire record, we conclude that the examiner's factual findings, as adopted by the Board, are supported by the record, and those facts support the denial of benefits. The applicable statute provides that an employee may be disqualified for benefits if the discharge results from "misconduct connected with the work." N.J.S.A. 43:21-5(b). Misconduct includes "'a disregard of standards of behavior which the employer has the right to expect of his employee.'" Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956) (quoting 48 Am. Jur., Social Security, Unemployment Compensation 541 (1943)),2 certif. denied, 23 N.J. 579 (1957). "Judicial attempts to imbue the term with substantive meaning have, however, insisted upon the ingredients of willfulness, deliberateness and intention if an employee's act is to qualify as misconduct." Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979).

In this case, with no credible excuse, Planas failed to follow the employer's written call-in policy and, more importantly, failed to timely accomplish a task essential to the health of the patient he was assigned to transport. In fact, when asked if the patient was eventually transported to the appointment and whether he was "an emergency patient," the co-worker testified "[y]es, yes" and confirmed that they finally delivered the patient to the dialysis facility later that day. On this record, we agree with the agency that Planas was fired for misconduct connected with the work. See Smith, supra, 281 N.J. Super. at 432-33 (a hospital orderly, who violated instructions and endangered a patient by feeding him shortly before he was to undergo an operation, committed misconduct connected with the work).

Affirmed.

1 The hearing was held in-person rather than by telephone, and the examiner sequestered the witnesses.

2 N.J.A.C. 12:17-10.2 defines misconduct as also requiring that the conduct be "malicious." However, acknowledging that the regulation is inconsistent with our holding in Beaunit Mills, the agency has proposed an amended regulation that omits this requirement. See 41 N.J.R. 3781(a).