CLAUDE B. TOWNSEND JR v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0455-11T1

CLAUDE B. TOWNSEND, JR.,

Appellant,

v.

BOARD OF REVIEW and

NEW JERSEY TRANSIT

MERCER INC.,

Respondents.

December 18, 2012

 

Argued October 10, 2012 - Decided

 
Before Judges Alvarez and Waugh.

 

On appeal from the Board of Review, Department of Labor, Docket No. 258,323.

 

Claude B. Townsend, Jr., argued the cause pro se.

 

Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

 

Respondent New Jersey Transit has not filed a brief.

PER CURIAM

Claude B. Townsend, Jr., appeals from the September 14, 2011 decision of the Board of Review of the Department of Labor (the Board) denying him unemployment benefits because he left his position with New Jersey Transit Mercer, Inc. (New Jersey Transit), his former employer, without good cause attributable to the work. We affirm.

Townsend asserts the following point of error:

CLAIMANT['S] EMPLOYMENT WAS TERMINATED WHILE UNDER THE CARE OF A PHYSICIAN FOR TWO SURGERIES AND A THIRD SURGERY PENDING IN THE NEAR FUTURE. CLAIMANT WAS DISCHARGED FROM HIS TREATING PHYSICIAN ON DECEMBER 16, 2009. THIS CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO THE WORK; THEREFORE, HE SHOULD NOT HAVE BEEN DISQUALIFIED FOR BENEFITS.

 

Townsend worked for New Jersey Transit as a bus operator from March 2, 1995, through August 28, 2008.1 On January 29, 2008, he was injured on the job. Townsend collected disability benefits from September 2, 2008, through September 2, 2009, at which time his employer met with him and advised that when his temporary disability expired, he would be placed on "vacation time," thereby extending his leave of absence to September 30, 2009. The employer's attendance policy permitted him an additional twenty days of absences, which, including holidays, ended on October 28, 2009. At the meeting, New Jersey Transit requested that Townsend submit medical documentation regarding his injury.

New Jersey Transit also met with Townsend on October 1, 2009, regarding his medical status. Despite being advised to do so, he did not produce any documentation that he was physically able to return to work. In fact, Townsend did not contact New Jersey Transit again until November 2, 2009, when he submitted a Family Leave Act request. The request was denied because he had exhausted the twelve allowed weeks due to temporary disability.

Townsend underwent surgery on his left hand on November 12, 2009, and was released by his surgeon to return to work on December 14, 2009. Townsend did not notify New Jersey Transit of this development and was discharged on November 24, 2009, when he failed to appear at a second scheduled hearing regarding his employment. New Jersey Transit terminated Townsend because he had exhausted his temporary disability and vacation time and failed to provide any documentation verifying that he could return to work.

The Board affirmed the Appeal Tribunal's conclusion that Townsend voluntarily separated from employment by virtue of his unexplained failure to communicate with his employer, provide necessary medical documentation, or even appear for hearings scheduled to address his status. Hence the Board determined Townsend left his employment without good cause attributable to the work, thereby disqualifying him for benefits in accordance with N.J.S.A. 43:21-5(a). That statute provides:

For 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 eight weeks in employment . . . and has earned in employment at least ten[2] times the individual's weekly benefit rate . . . .

 

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

Someone "who has been absent because of a . . . physical . . . 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." N.J.A.C. 12:17-9.3(c). The "employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment" constitutes "reasonable effort." Ibid. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Brady v. Bd. of Review, 152 N.J. 197, 214-15 (1997) (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)). When an employee "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).

Additionally, a claimant bears the burden of proof to establish his entitlement to unemployment benefits. Brady, supra, 152 N.J. at 218. In this case, we are satisfied that Townsend did not provide medical documentation to his employer at any time until after he had been terminated. He had surgery on his right hand on July 30, 2009, surgery on his left hand on November 12, 2009, could have readily documented those procedures to his employer, and inexplicably failed to do so. Even to the Appeal Tribunal, the only medical evidence he provided was a December 14, 2009 doctor's note indicating that he was physically able to return to work.

The process necessary for Townsend to keep his position was clearly explained to him. Despite this, he neither supplied New Jersey Transit with medical documentation nor appeared for hearings regarding his job status after October 1.

Thus we agree with the Board that Townsend has not met his burden of proof. The record does not explain or justify his failure to take the steps necessary to keep his job. His conduct amounted to a decision to "'voluntarily leav[e] the ranks of the employed and join[] the ranks of the unemployed.'" Domenico v. Labor & Indus. Dep't Review Bd., 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Review Bd., 158 N.J. Super. 172, 174 (App. Div. 1978)). A person of "ordinary common sense and prudence" would have responded to the employer's requests by providing medical documentation, appearing at hearings, and responding to phone calls and letters. See id. at 288.

"'[I]n 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)). So long as the Board's findings were supported by sufficient credible evidence, we do not disturb them. Ibid.

T

he Board's judgment that Townsend left his position without good cause attributable to the work was amply supported by the record. We do not find the agency's action to be arbitrary, capricious, or unreasonable, and therefore do not disturb the Board's ruling. See In re Hermann, 192 N.J. 19, 27-28 (2007).

Affirmed.

1 Townsend was not actually terminated until November 24, 2009.

2 N.J.S.A. 43:21-5(a) was amended pursuant to L. 2010, c. 37, 2, eff. July 1, 2010, increasing the period of benefits upon reemployment from four to eight weeks, and increasing the weekly benefit rate multiplier from six to ten.