DORA M. RIVERA v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DORA M. RIVERA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and VITAQUEST

INTERNATIONAL, LLC,

Respondents.

______________________________________________

November 20, 2013

Before Judges St. John and Leone.

On appeal from the Board of Review, Department of Labor, Docket No. 359,444.

Stanley G. Sheats argued the cause for appellant (Northeast New Jersey Legal Services, attorneys; Mr. Sheats, on the briefs).

Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General,attorney; LisaA. Puglisi, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief).

Victoria Cioppettini argued the cause for respondent Vitaquest International, LLC. (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Ms. Cioppettini, on the brief).

PER CURIAM

Dora Rivera (Rivera) appeals from a final determination of the Board of Review (Board), which found that she was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because she left her job voluntarily without good cause attributable to the work. Our examination of the record satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.

An initial claim for unemployment benefits was filed as of September 25, 2011. A deputy claims examiner determined that Rivera was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work.

Rivera sought review of the deputy's decision by the Appeal Tribunal, which conducted a hearing in the matter on February 21, 2012, and upheld the deputy's determination. Rivera appealed to the Board, which rendered a decision mailed on June 19, 2012, affirming the Appeal Tribunal's decision. It is from that decision that Rivera appeals.

At the Appeal Tribunal hearing, Rivera testified that she was employed by Vitaquest International, LLC as a machine operator and packer from February 1998 to July 27, 2011. On Tuesday, July 17, 2011, she was told by a supervisor that she needed to change her open shoes to shoes that covered her feet.1 She was sent home and asked to return with the proper shoes. Rivera knew that it was company policy that she wear the required shoes but no one had ever noticed that she was not wearing the appropriate shoes because she wore pants that covered her shoes.

Rivera took vacation leave until she received her next paycheck, which she used to purchase the necessary shoes. She returned to work the next Monday wearing the required shoes. She worked on Tuesday, but when she got home her "feet were full of blisters," which she showed to her supervisor on Wednesday when she returned to work. Rivera stated that her supervisor said her "feet didn't look good" and that she needed "to do something," so Rivera went to the doctor.

Rivera went on disability leave from July 27 through September 7. On September 7, she was supposed to return to work, but she then called her supervisor and "told her that since I cannot wear . . . the kind of shoes, I won't be able to go back to work." During the period Rivera was on disability, she never requested a letter from her doctor to give to her employer requesting an accommodation for the shoes. Also, prior to leaving the company, Rivera never asked if the company could make an accommodation allowing her to wear non-compliant shoes due to her medical condition.

Rivera further acknowledged that she neither called the Human Resources Department nor submitted "any type of medical documentation from [her] doctor to say 'Miss Rivera needs to be able to use open-toed shoes because of her health condition.'" She stated that before she called the company and told them that she was not returning, no one at the company told her that she had to wear the required shoes upon her return. She further stated that she did not discuss her options with her employer.

Rivera submitted a letter, dated September 29, 2011, to the Appeal Tribunal from Fred S. Revoredo, M.D., stating that Rivera had "been treated for bilateral foot pain and swelling. Ms. Rivera need used open shoes to prevent pain, swelling and ulceration."

On appeal, Rivera argues that she did not voluntarily leave her job without good cause attributable to the work. She asserts that she voluntarily left for health or medical reasons. We disagree.

The scope of our review in an appeal from a final determination of the Board is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982); see also Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)).

New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -60, provides in pertinent part that an individual who leaves "work voluntarily without good cause attributable to such work" is disqualified from receiving unemployment benefits. N.J.S.A. 43:21-5(a). The statute does not define "good cause" but that term has been construed to mean a "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)).

A claimant who leaves work for medical reasons may qualify for unemployment benefits when the claimant submits unequivocal medical evidence that the work caused or aggravated the health problem. Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (finding doctor's equivocal statement that work "may" have aggravated claimant's condition insufficient to support claim); Israel v. Bally's Park Place, Inc., 283 N.J. Super. 1, 6 (App. Div. 1995) (where an employee asserts that voluntary separation resulted from detrimental effects on health, entitlement to unemployment benefits requires a showing by "adequate medical evidence" that the work environment aggravated the illness), certif. denied, 143 N.J. 326 (1996); Brown v. Bd. of Review, 117 N.J. Super. 399, 404 (App. Div. 1971) (finding claimant's "conclusory statements" that his work aggravated his medical condition insufficient to support claim); N.J.A.C. 12:17-9.3(d) (noting that "medical certification shall be required to support a finding of good cause attributable to work").

Here, Dr. Revoredo's letter, which was never submitted to the employer prior to Rivera quitting, did not even reference her work or the type of shoes required by the employer other than "Ms. Rivera need used open shoes to prevent pain, swelling and ulceration." We conclude that Rivera did not present "adequate medical evidence" that the specific type of required shoes aggravated her foot problem.

Assuming that Dr. Revoredo's letter met the stringent standard of unequivocal medical evidence that the work caused or aggravated the health problem, Rivera did not establish that "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)(b).

When Rivera quit, she failed to supply her employer with any medical evidence that her work was affecting her health. Additionally, she did not afford her employer the opportunity to alter her working conditions in an effort to alleviate the condition that was allegedly affecting her health. Instead, she simply told her supervisor that she could not wear the required shoes and quit her job. Rivera argues that any request for an accommodation would have been pointless since it was the company's policy that employees wear closed shoes.

However, it was Rivera's obligation to determine whether other suitable work or foot wear was available which would have allowed her to perform her job within the limits of her alleged disability. The Appeal Tribunal found that she "did not discuss her concerns regarding the foot wear with her employer prior to leaving the job."

Thus, the record supports the Board's decision that Rivera's reasons for leaving were personal and not attributable to her work.

1 Rivera acknowledged "[w]ell, I was supposed to work with shoes that were closed, you know, protective shoes . . . ."