DAVID D. LOWERY v. BOARD OF REVIEW DEPARTMENT OF LABOR AND PROJECT U.S.E

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3170-09T1

DAVID D. LOWERY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND PROJECT U.S.E.,

Respondents.

________________________________________________________________

May 16, 2011

Submitted March 22, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 201,422.

David D. Lowery, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Project U.S.E. has not filed a brief.

PER CURIAM

David D. Lowery appeals from a January 26, 2010 final agency decision of the Board of Review (Board), affirming the September 4, 2009 decision of the Appeal Tribunal disqualifying Lowery from unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because he left work "voluntarily without good cause attributable to the work." Concluding that Lowery's injuries were work-related and no suitable employment was available, we reverse.

This matter has a lengthy procedural history. On November 20, 2008, the Appeal Tribunal found Lowery eligible for benefits as "the employer was unable to offer the claimant any work within his medical restrictions." After the employer appealed, the Board sent the matter back for additional testimony "to establish whether the claimant's medical condition is work-related . . . ." On April 3, 2009, after hearing only from the employer, the Appeal Tribunal determined that Lowery was disabled due to a non-work-related injury that he sustained on December 26, 2007, and that his doctor had released him to return to work as of June 23, 2008. The Appeal Tribunal found that "[h]e was not required to perform heavy lifting or movements. [Lowery] did not return to work because the commuting back and forth to work would aggravate his back condition." On June 8, 2009, the Board remanded for additional testimony from the executive director of Project U.S.E.,1 Lowery's employer, and Lowery himself, who had not received notice of the April 3, 2009, hearing. On September 4, 2009, the Appeal Tribunal found the same facts it had found on April 3, 2009, and also found that "[c]ontinuing work was available." This time the Board agreed, and Lowery appeals from the Board's January 26, 2010 determination.

Lowery was hired to work as a youth worker by Project U.S.E. in 1995. He worked until December 26, 2007, when he became disabled due to the aggravation of injuries to his hip and back he sustained in a 2006 motor vehicle accident. He received temporary disability benefits through June 23, 2008, when his doctor declared him fit to return to work for light duty. Lowery's neurologist reported on June 5, 2008, that Lowery suffered from "chronic low back pain based on significant findings on MRI of the lumbar spine." He also reported that Lowery "[was] required to take multiple pain medication, physical therapy . . . [and] should refrain from heavy lifting or any strenuous work activity. It will aggravate his low back pain." Rather than return to work, Lowery sought unemployment compensation.

Lowery contended that his 2006 motor vehicle accident was work-related, and his 2007 back and hip problems stemmed from the earlier accident. The claim certification supporting his application for temporary disability benefits at the end of 2007, however, indicated that his injuries were not connected with his employment. He would not have been eligible for temporary disability benefits had his injury been work-related. See N.J.S.A. 43:21-26; N.J.S.A. 43:21-29. He did not file a claim for worker's compensation benefits in 2007, and the documentation from his doctor at that time stated that his injuries were not work-related.

Lowery maintains that his 2007 injuries resulted from an aggravation of injuries suffered in the 2006 accident when he

was in the company van parked in front of the Church waiting for our boys to come out. A guy came around the corner and hit me from behind, pushed the truck about around 50 feet. Police came. Ambulance came took me to the hospital.

Lowery claims that, although he returned to work after the accident, he became unable to continue in December 2007 as a result of his work duties aggravating the injuries from the earlier work-related accident.

Lowery testified he was told by his employer that no suitable work was available because, regardless of his assigned duties, Lowery would have to climb three flights of stairs at the jobsite, which Lowery was unable to do in his disabled condition. Lowery testified that his job duties working with youth involved "physical stuff" including not only climbing stairs, but athletic activities such as rock climbing and outdoor games.

Lowery's supervisor initially testified in accord, indicating "[i]t's definitely a labor intensive kind of position." At a later hearing, the executive director said that the job "basically involved sitting, standing and then most[ly] walking upstairs in addition to driving and so light duty is kind of a standard day at work." Lowery argues that his injury was work-related, no appropriate light duty was available, and he should therefore be accorded benefits.

Lowery also testified, however, that the strenuous nature of his job duties was not the immediate cause of his resignation. He said that after his motor vehicle injuries were aggravated at work, he could not sit in his car for the commute from his home in Plainfield to the job in Trenton, which took from one to one and one-half hours.

The Appeal Tribunal found that "there [was] no evidence that this was a work related injury"2 and that he left work because of his inability to withstand the lengthy commute rather than any unavailability of light-duty work, which the Appeal Tribunal found was available. The Board agreed with these findings and found Lowery disqualified.

We review Lowery's contentions in accordance with our standard of review. The Board's determination that Lowery was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

We "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'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)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, then we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

At the time Lowery's claim was denied,3 a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is disqualified for 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 for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .

[N.J.S.A. 43:21-5(a) (emphasis added).]

A section of the Administrative Code explains the ramifications of voluntarily leaving work for health or medical reasons as follows,

(a) An individual who leaves work because of a disability which has a work-connected origin 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.

(b) An individual who leaves a job due to a physical and/or mental condition or state of health which does not have a work-connected origin but is aggravated by working conditions will not be disqualified for benefits for voluntarily leaving work without good cause "attributable to such work," provided there was no other suitable work available which the individual could have performed within the limits of the disability. 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.

(c) Notwithstanding (b) above, an individual who has been absent because of a personal illness or physical and/or mental condition shall not be subject to disqualification for voluntarily leaving work if the individual has made a reasonable effort to preserve his or her employment, but has still been terminated by the employer. A reasonable effort is evidenced by the employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment.

(d) When an individual leaves work for health or medical reasons, medical certification shall be required to support a finding of good cause attributable to work.

[N.J.A.C. 12:17-9.3.]

Lowery's condition prevented him from commuting to work, but even if he were able to travel to work, no suitable work was available for him. His work required climbing three flights of stairs and participating in activities with adolescent boys. He is not in the same situation as employees who are disqualified from receiving benefits because they left work "voluntarily without good cause attributable to such work." See Self v. Bd. of Review, 91 N.J. 453, 454, 458 (1981) (holding that "leaving work because of transportation difficulties is a voluntary quit"); Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) (concluding that "[a]n employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work"). Because no work was available for him that he could perform within the limits of his disability, Lowery fits squarely within N.J.A.C. 12:17-9.3(a) and is not disqualified.

Lowery testified convincingly under oath that the 2006 motor vehicle accident occurred at work while he was performing his assigned duties. No evidence was presented to dispute that Lowery's original injuries in 2006 were work-related. He testified that those injuries were aggravated by his return to work, although he did not seek worker's compensation benefits when these injuries were aggravated at work, and his doctor reported Lowery s recent disability as non-work-related. The Board found he was not entitled to benefits because the 2007 injury was not work-related, and he was offered light duty. If his work indeed aggravated his prior injuries, Lowery would be entitled to benefits under N.J.A.C. 12:17-9.3(b). See Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (where the Court noted that "the aggravation of a preexisting condition would constitute good cause under [N.J.S.A. 43:21-5(a)]"); cf. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457 (App. Div. 1967) (where we held that leaving work because it is detrimental to an existing physical condition or state of health that did not have a work-related origin is a personal reason that disqualifies the claimant from receiving unemployment compensation benefits).

Even if the 2007 aggravation of his earlier injuries was not work-related, the original cause of those injuries was a work accident. Also, given the three flights of stairs and lack of an elevator, no job was available at the work site that Lowery could perform with his disability. Although Lowery would not have been able to commute to perform suitable work had it been available, the worker is entitled to unemployment benefits if the injury is work-related, or aggravated by work conditions, and no suitable work is available. The employee is entitled to benefits under these conditions regardless of whether or not he is in a position to take advantage of such suitable work.

R

1 Project U.S.E. (Urban Suburban Environments) is a private, non-profit organization which provides services for juvenile offenders in New Jersey. See www.projectuse.org; Juvenile Justice Commission website, http://www.state.nj.us/lps/jjc/ group_centers.htm.

2 In its April 3, 2009 decision, the Appeal Tribunal initially found that "the claimant became disabled due to a non-work related injury" on December 26, 2007, and later in the same decision concluded that Lowery's injury was "caused by the work."

3 The statute has since been amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate. L. 2010, c. 37. Those changes are not germane to this appeal.