DEBBY A. BRYANT v. BOARD OF REVIEW and FREEDOM HEALTHCARE LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5166-06T3

DEBBY A. BRYANT,

Appellant,

v.

BOARD OF REVIEW and

FREEDOM HEALTHCARE, LLC,

Respondents.

________________________________________________________________

June 6, 2011

Submitted May 31, 2011 - Decided

Before Judges Lisa and Reisner.

On appeal from the Board of Review, Department of Labor, Docket No. 137,418.

Debby A. Bryant, appellant pro se.

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

Respondent Freedom Healthcare, LLC has not filed a brief.

PER CURIAM

Appellant, Debby Bryant, appeals from the March 14, 2008 final decision of the Board of Review (Board), which affirmed the January 22, 2008 determination by the Appeal Tribunal that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. Appellant argues that the record does not support the finding that she voluntarily left work. We reject appellant's argument and affirm.

Appellant was employed by Freedom Healthcare as a certified home health aide, beginning on February 12, 2005. She stopped working on February 22, 2006. She applied for benefits, and they were granted. Her employer appealed that determination, and a hearing was held before the Appeal Tribunal on December 21, 2007. Appellant did not appear at the hearing. Based upon the testimony of the employer's representative, the appeals examiner found that appellant left work on February 22, 2006 because of a death in the family, and that when she later advised the employer that she was again available for work, the employer offered her job assignments, but she declined them. Based upon that finding, the appeals examiner rendered a decision disqualifying appellant from benefits because her reason for leaving work was voluntary and without good cause attributable to the work. In a March 19, 2007 decision, the Board affirmed the decision of the Appeal Tribunal.

Appellant appealed to this court. At the request of the Board, we remanded the matter for a new hearing before the Appeal Tribunal and a new decision. The Appeal Tribunal conducted a rehearing on January 7, 2008. The appeals examiner heard the testimony of appellant and the employer's representative. Appellant contended that she stopped working because there was a lack of available work and the employer stopped offering her assignments. Appellant further contended that she was precluded from returning to work because the employer submitted an incorrect social security number to the Internal Revenue Service (IRS) for her, and that she was unable to correct the problem with the IRS. She denied having told the employer that there was a death in the family which would preclude her from being available for work for a time.

The employer's representative, Barbara London, a senior vice president at Freedom Healthcare, referring to records in appellant's file, testified that on February 22, 2006, appellant called in and spoke to Olga Velez, and reported that she would not be available for work because of a death in the family and that she did not say when she would be available to return to work. At the time of the hearing, Velez was no longer employed by Freedom Healthcare. London further testified that on October 16, 2006, appellant called and spoke to Elizabeth Jones, who at that time was the personnel coordinator, to advise that she could return to work. However, although work assignments were offered to appellant, she declined to accept them.

London further testified that she was unaware of any problem appellant had with the IRS. London confirmed that the company records properly recorded appellant's correct social security number, which was used in all IRS filings.

Appellant never returned to work for Freedom Healthcare. She obtained employment with a different employer in July 2007.

The appeals examiner found London credible and found appellant lacking in credibility. He accordingly made a factual finding that appellant left work because of a death in the family and thereafter declined offers of further work assignments. Based upon that factual finding, he issued a decision on January 22, 2008 determining that appellant was disqualified for benefits because she voluntarily left her employment without good cause attributable to the work.

Based upon its review of the record, the Board agreed with and affirmed the decision of the Appeal Tribunal and issued its final decision to that effect on March 14, 2008. This appeal followed.

The scope of our review of the final decision of an administrative agency is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The final decision in this case rested primarily upon credibility determinations. Such determinations are best made by the factfinder who heard the witnesses and was in the best position to assess their credibility. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). A reviewing court will defer to such credibility determinations, as long as they are supported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 656 (1999); State v. Locurto, 157 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The record in this case supports the credibility determinations made by the agency, and we have no occasion to interfere with them.