DOLETA BROWN v. BOARD OF REVIEW and VERIZON NEW JERSEY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5250-07T35250-07T3

DOLETA BROWN,

Appellant,

v.

BOARD OF REVIEW and

VERIZON NEW JERSEY,

Respondents.

______________________________

 

Submitted April 30, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. 174,623.

Doleta Brown, appellant pro se.

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

Respondent Verizon New Jersey has not filed a brief.

PER CURIAM

Appellant Doleta Brown appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's (tribunal) determination that she was disqualified from receiving unemployment compensation benefits because she left work "voluntarily without good cause attributable to such work," N.J.S.A. 43:21-5(a). The tribunal also required appellant to refund all benefits paid. N.J.S.A. 43:21-16(d)(1). Our examination of the record, in light of our standard of review, satisfies us that the Board's final decision was properly premised upon facts in the record and consonant with relevant statutory provisions. Accordingly, we affirm.

Appellant was employed by Verizon of New Jersey from June 1, 1970 until September 24, 2007. Her last position was in the Logistics Department where her duties included lifting and ordering products, internal service to other employees, and travel to various locations. Appellant was diagnosed with cancer, which was treated and in remission. The cancer returned and on January 24, 2005, appellant underwent a mastectomy, followed by chemotherapy. She returned to work in June 2005, but her ability to lift weight was restricted. For approximately six months, appellant performed light duty. Thereafter, she was assigned to special projects that did not involve lifting. Appellant believed the special projects assignment might soon end. She applied for an alternative sedentary position for which she was not selected. She retired on September 24, 2007.

At the hearing, appellant acknowledged she had not provided medical evidence supporting any limitations, which would restrict the type of jobs she could perform. She also produced no medical reports stating her medical condition required her to cease her employment.

Appellant's initial request for unemployment benefits was granted. After appeal, an appeals examiner conducted a telephonic hearing on October 14, 2007. The tribunal concluded appellant failed to produce documentation to support her work at Verizon caused or aggravated her medical condition, justifying her termination. Appellant left work to retire, a reason not attributable to the employment, which was not compensable. The tribunal concluded appellant was disqualified from receiving unemployment benefits and was required to refund the benefits paid. The Board affirmed this decision.

On appeal, appellant argues she voluntarily left her employment because her medical condition prevented the performance of her duties and she was not offered a more sedentary position. She believed her situation qualified her for benefits.

An employee who leaves a job voluntarily is statutorily disqualified from receiving unemployment benefits, N.J.S.A. 43:21-5(a), and has the burden of proving that he or she did so with good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). "Good cause" is defined in the regulations as "a reason related directly to the individual's employment, which [is] so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). Causes personal to an employee and not attributable to the work come within the disqualification of the statute. Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)); White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977). A notice of quitting separates the employee from the job and constitutes a voluntary leaving. Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979).

If 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(d). If that documentation is provided, and the person "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 [she] will not be disqualified for benefits for voluntarily leaving work . . . provided 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(b).

Any examination of the basis for an employee's departure is fact-sensitive. As a result, when the agency's findings of fact are challenged on appeal, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a strong presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). In our limited review, we will not disturb an agency's decision unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964). Further, we accord substantial deference to the interpretation given by an agency to the statute it is charged with enforcing, Bd. of Educ. of Neptune v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996), and give deference to credibility determinations made by the factfinder. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Giving due regard to the appeals examiner who had the opportunity to assess the credibility of appellant and her employer, we are satisfied with the Board's finding that appellant failed to prove she left work due to a medical impairment aggravated by the work. Brown v. Bd. of Review, 117 N.J. Super. 399, 405 (App. Div. 1971). Appellant was cleared by her doctor to resume employment, but provided no proof of limitations or the need to be assigned to a different position due to her medical conditions. The doctor's note explaining her medical condition produced at the hearing is untimely. Based on the record, the conclusion remains that she left her employment based upon a decision to retire. Accordingly, we respect the Board's expertise and defer to its considered determination. Karins v. City of Atl. City, 152 N.J. 532, 540-41 (1998).

Once a person has been disqualified to receive unemployment benefits, the statue requires repayment of any benefits received. N.J.S.A. 43:21-16(d)(1). Recoupment of "unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits[,]" protects the public and maintains a fund for those adversely affected by unemployment, not those who voluntarily choose to leave the workforce. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). "The public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient[.]" Ibid.

 
Affirmed.

Appellant presented correspondence from her physician, dated almost a year after she left her position, stating her ability to lift was restricted to ten pounds.

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A-5250-07T3

May 12, 2009