RICHARD KUTCHER 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NOT FOR PUBLICATION WITHOUT THE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

RICHARD KUTCHER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and AIM OIL CO., INC.,

Respondents.

_______________________________

April 11, 2014

Before Judges Lihotz and Hoffman.

On appeal from the Board of Review, Department of Labor, Docket No. 284,846.

Elizabeth T. Foster, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; George N. Cohen, Deputy Attorney General, on the brief).

Respondent AIM Oil Co., Inc. has not filed a brief.

PER CURIAM

Petitioner Richard Kutcher appeals from a final agency decision issued by the Board of Review on January 7, 2013 upholding the denial of his application for unemployment benefits. We affirm.

These facts are found in the record before the Appeals Tribunal. Kutcher worked for Aim Oil Company, Inc., t/a AIM Tank Services Company (Aim), as an "on-site supervisor, heavy equipment operator, truck driver" and, at times, also worked as an estimator. Kutcher suffered a work-related back injury on October 6, 2008. Following back surgery and after-care treatment, Kutcher was released to return to work as of January 7, 2010. Kutcher's treating physician, Carl P. Giordano, M.D., imposed restrictions on work tasks to include "[l]ight [d]uty[,] [but] not to lift or carry anything weighing over 40 lbs. on a repetitive basis." Kutcher's discharge documentation also included Dr. Giordano's completed physical functional assessment form. Dr. Giordano stated Kutcher was capable of "occasionally" driving small or large trucks and could use automatic transmission vehicles without restriction and "frequently" use trucks with standard transmission. Kutcher was never to operate heavy equipment.

A delay in Kutcher's return to work was occasioned by several things. First, Aim's workers' compensation carrier failed to notify either the employee or the employer that Kutcher had been cleared to return to work. Second, when notice was received in late January, Aim requested clarification from Dr. Giordano regarding the scope of his recommended work restrictions. Finally, icy weather caused Aim to delay Kutcher's actual date to report to work. With the employer's consent, Kutcher returned to work on March 2, 2010.

Bernadette Solari, Aim's office manager, first learned Kutcher had been cleared when she contacted the workers' compensation carrier on January 20, 2010, and understood he had not received the necessary written notification advising him to return to work. Thereafter, Solari requested Dr. Giordano clarify the recommended restrictions, which he did in a February 22, 2010 letter. The letter advised Solari "the type of work" offered to Kutcher was "within his capabilities" and there was "no reason why he cannot return to work in that capacity." The letter mentions Kutcher was fifty-four years old and "may want to retire or move on[,] but that would be a private issue. The type of surgery he underwent would certainly not prevent him from working in that capacity."

On March 2, 2010, Solari offered Kutcher work as a truck driver. She also had available "back truck work," which involved getting rid of soil, but did not involve "any heavy lifting." Kutcher suggested he was "uncomfortable" resuming work driving a truck, but could perform estimator services. However, Aim had no estimating work available because March was "the slowest time of the year" for the company. Solari was under the impression Kutcher could not drive a truck, as he told her he was having trouble sitting and was still attending physical therapy. He wanted to wait until he felt he was fully recovered.

On March 3, 2010, Solari, on behalf of Aim, wrote to Kutcher explaining he was laid-off "due purely to financial matters," stating no estimation work was available. The letter also advised the company would "work around" Kutcher's physical therapy sessions and noted "if any work comes up such as estimates, office, installations (no heavy lifting), light driving, we will call you to see if you can come in." Kutcher never returned to work. He filed his claim for unemployment benefits on March 21, 2010, which was denied and he appealed.

An appeals examiner reviewed the testimonial and documentary evidence presented by Kutcher and Aim during a telephonic hearing. The examiner found Kutcher had been released from his disability and cleared for work. Further, upon his return, Aim offered him work, which he did not accept. Therefore, the appeals examiner concluded Kutcher could not file a claim for unemployment benefits pursuant to N.J.A.C. 12:17-5.6(a)(1), which allows benefits only when an employee returns to work following a disability and work is not available. The appeals examiner also noted if such a claim is available, it must be filed within four weeks of the claimant being cleared for work, unless good cause for the delay is provided. Ibid. Finally, the appeals examiner rejected Kutcher's assertion Kutcher was laid off because of Aim's financial difficulties, finding the employer's correspondence to that effect was an attempt to aid Kutcher's insurance claim.

Kutcher appealed. The Board adopted substantially all of the findings made by the appeals examiner. However, the Board found Kutcher attempted to return to work as an estimator, a position that was not immediately available, so he waited for a call to return to work in that capacity. Therefore, the Board concluded Kutcher's delay in filing his benefit request, in part, resulted from his "attempt[] to obtain other work with the employer," a circumstance found to satisfy the statutory good cause requirement for the delay in submitting his application.

Following its review, the Board remanded the matter for additional consideration by a deputy claims examiner of the Division of Unemployment Insurance to determine whether Kutcher "otherwise met the week-to-week requirements of eligibility."

Following the deputy's review, Kutcher's claim was again denied and he appealed. At the Board's request, we granted its unopposed motion for a limited remand. The Board reopened the matter on January 3, 2013. No new evidence was submitted and the Board's review was based on the existing record.

The Board again adopted substantially all the findings initially rendered by the appeals examiner. The Board also found Kutcher's primary job at Aim was as a truck driver and "he performed work as an estimator on occasion." The reference to lack of work included in Solari's March 3, 2010 letter was found to relate solely to Kutcher's duties as an estimator, not employment as a truck driver. Finally, the letter was written following Kutcher's disclosure "he did not want to drive a truck until he felt he was 100% recovered."

After considering the medical documentation, the Board found, in accordance with Dr. Giordano's opinion, Kutcher was cleared to drive a truck and his report specifically referenced his abilities in that capacity. On the other hand, Kutcher failed to submit evidence to show he was unable to drive a truck. Therefore, the position as a truck driver was available when Dr. Giordano released Kutcher for work. Because only estimation work was unavailable, the Board concluded Kutcher's claim for benefits was invalid. This appeal ensued.

The scope of our review of a final agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); Futterman v. Bd. of Review, 421 N.J. Super. 281, 287 (App. Div. 2011). In our review, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). Moreover, because the administrative agency's determination carries a presumption of correctness, a claimant who challenges the agency's conclusion carries a substantial burden of persuasion. Gloucester Cnty. Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).

While an agency's interpretation of "statutes and regulations within its implementing and enforcing responsibility" receive "some deference[,]" an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (internal quotation marks and citations omitted). However, we will overturn an agency determination if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391; Campbell, supra, 39 N.J. at 562.

Kutcher seeks reversal of the Board's denial of benefits, arguing the denial of his request to use an alternate base year to calculate unemployment benefits following his disability was timely filed and, further, he demonstrated good cause for any delay, pointing to Aim's deferral of his resumption of employment from January 7 to March 2, 2010. Kutcher also challenges as erroneous the Board's finding that he refused available work. Instead, he suggests he was not cleared to drive a tractor trailer, which should be considered heavy equipment, or to lift oil tanks. Finally, Kutcher suggests he was not given the opportunity to resume working within his capabilities.

N.J.S.A. 43:21-4 sets forth the eligibility conditions for unemployment benefits, which includes a requirement that a claimant has worked a certain number of weeks and has earned a statutorily-fixed amount over the course of the claimant's "base year" of employment. See N.J.S.A. 43:21-4(e)(4), (5); N.J.S.A. 43:21-19(c)(1), (d). When an employee has insufficient base weeks of wages during the five weeks preceding the claim for benefits, an "alternate base year," as defined in N.J.S.A. 43:21-19(c)(1), may be used to calculate benefits, if the claimant is otherwise eligible.

However, in the case of a prior disability, N.J.S.A. 43:21-19(c)(2) allows computation using the alternate base year "if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period . . . ." The companion regulation addressing this issue states:

This section applies only to those individuals whose employment is not available at the conclusion of the disability period, provided the individual files his or her claim within four weeks of recovery, except where he or she has shown good cause as defined at N.J.A.C. 12:17-4.1 for filing a claim after four weeks.

[N.J.A.C. 12:17-5.6(a)(1).]

N.J.A.C. 12:17-4.1(b) defines "good cause" as "any situation which was substantial and prevented the claimant from reporting . . . ."

Turning to the facts at hand, Kutcher had no earnings during the base year, and, therefore, sought benefits using an alternate base year. Although he failed to file his benefit claim within the requisite four-week period, the Board did not deny his claim because it was untimely. Rather, denial resulted because Kutcher's claim was invalid: the Board found work was available to Kutcher upon return from disability leave, which he declined to accept.

The record supports these facts. Dr. Giordano's January 21, 2010 facsimile cleared Kutcher for light duty work; the functional assessment states Kutcher was able to occasionally drive a small and large truck, frequently drive a vehicle with standard transmission, and drive a vehicle with automatic transmission without restriction. Dr. Giordano's February 22, 2010 clarification letter stated Solari's proposed work was "within [Kutcher's] capabilities." Also, on March 2, 2010, Solari extended an offer for Kutcher to resume his job as a truck driver, without using heavy equipment. Elaborating on this latter point, Solari testified at the hearing "the minimum he needed to do was be able to drive a truck," adding if Kutcher was unable to use the equipment "we could have had someone you know we could have worked around it . . . ."

A careful review of the substantial credible evidence in the record belies Kutcher's assertion that a modified duty job, within his capabilities, was unavailable. Further, the evidence in the record refutes Kutcher's claim he was unable to drive a truck, which he considered "heavy equipment." Solari testified options were available; it was Kutcher who was hesitant to attempt driving in any capacity. Finally, Kutcher's claim that he would have attempted to drive a truck if the position was offered is specious. Solari unequivocally stated Kutcher, not his doctor, felt he was unable to drive and before doing so wanted to feel 100%.

Kutcher offered no medical evidence to support his assertion he could not drive standard transmission trucks. Dr. Giordano noted he could do so "frequently." The record also reflects his employer was willing to accommodate Kutcher's physical therapy schedule, and otherwise "[work] around" his injury as he returned to work following his extended disability. However, Kutcher completely declined the opportunity for work. In light of these unrefuted facts, the Board properly declined Kutcher's claim for benefits because he declined available work.