MATTHEW CALAFIORE v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4699-15T3

MATTHEW CALAFIORE,

          Petitioner-Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
COMPACT AUTO BODY, INC.,

     Respondents-Respondents.
_________________________________

                    Submitted October 3, 2018 – Decided November 27, 2018

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 023, 459.

                    Leslie A. Farber, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa H. Raksa,
                    Assistant Attorney General, of counsel; Alan C.
                    Stephens, Deputy Attorney General, on the brief).

                    Respondent Compact Auto Body, Inc., has not filed a
                    brief.
PER CURIAM

        Claimant Matthew Calafiore challenges Board of Review decisions

disqualifying him from receiving unemployment benefits as of March 17, 2013,

and directing that he refund unemployment benefits he received. We affirm.

                                     I.

         Claimant commenced his employment with Compact Auto Body, Inc.

(Compact) in December 2011. One year later, in December 2012, he filed a

claim for unemployment compensation benefits but did not initially take any

action to collect the benefits.  1 On March 18, 2013, claimant resigned from

Compact to accept employment with Monmouth Auto Body (Monmouth).

Monmouth laid off claimant in April 2013, two weeks after his employment

began.    Claimant thereafter collected unemployment compensation benefits

totaling $17,020 for the weeks ending May 11, 2013, through November 16,

2013.




 1 During a July 23, 2014 Appeal Tribunal hearing, claimant explained that he
filed the December 2012 claim to obtain temporary unemployment
compensation benefits following a two-and-a-half week closure of Compact
following Superstorm Sandy. Claimant did not, however, take any action to
collect benefits until he resigned from his employment at Compact in March
2013, and was later laid off by his subsequent employer, Monmouth Auto Body.
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      Claimant filed a new claim for unemployment benefits in December 2013.

During a January 23, 2014 fact-finding conference before a claims examiner,

claimant explained that he quit his job at Compact in March 2013, and

subsequently worked at Monmouth for two weeks before being laid off. The

claims examiner advised claimant Compact had not been notified about his May

2013 benefits claim, but that Compact was informed about his December 2013

claim and, in response, stated claimant resigned his employment to accept a job

with a new employer.        The claims examiner informed claimant he was

disqualified from the benefits he collected during 2013 because he voluntarily

resigned his employment with Compact, and that he was liable for a refund of

the benefits he received.

The Board Decides Claimant Is Disqualified

      In a subsequent written determination, a Division of Unemployment and

Disability Insurance (Division) Deputy Director disqualified claimant from

benefits after March 17, 2013, because he voluntarily left his job at Compact on

March 18, 2013, by resigning to accept the Monmouth job. The Deputy Director

also found claimant liable for a refund of the $17,020 in benefits he received in

2013 during the disqualification period.




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      Claimant appealed and testified during a July 23, 2014 Appeal Tribunal

hearing that he resigned from his position as an estimator at Compact due to the

stress of an increasing workload, and after he found a higher paying position

with Monmouth.      The Appeal Tribunal determined claimant's reasons for

leaving Compact "[did] not rise to the level of good cause attributable to the

work," and concluded claimant was "disqualified for benefits from [March 17,

2013,] under N.J.S.A. 43:21-5(a)" and that his subsequent employment at

Monmouth was "insufficient to end [his] disqualification."         The Appeal

Tribunal further determined claimant is liable under  N.J.S.A. 43:21-16(d) to

refund the benefits he received during the period following March 17, 2013, but

noted claimant could request a refund waiver. In a January 9, 2015 decision,

the Board of Review adopted the Appeal Tribunal's findings of fact and affirmed

its decision. Claimant appealed.

Remand To Consider May 4, 2015 Amendment to  N.J.S.A. 43:21-5(a)

      On February 1, 2016, we granted the Board's motion to remand this matter

to determine whether a May 4, 2015 amendment to  N.J.S.A. 43:21-5(a) should

be applied retroactively.       The amendment authorized unemployment

compensation benefits for individuals under certain circumstances who leave

work to accept employment with a new employer.  N.J.S.A. 43:21-5(a), amended


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by L. 2015, c. 41. On remand, the Board found the amendment did not apply

retroactively to claimant's unemployment compensation claim, see Ardan v. Bd.

of Review,  231 N.J. 589, 608-13 (2018) (finding the May 4, 2015 amendment

to  N.J.S.A. 43:21-5(a) is not retroactive), and that claimant is disqualified from

March 17, 2013, and liable for the refund.

The Board Reissues Its Final Decision

      The Board moved for a second temporary remand to determine whether

claimant was denied due process because Compact did not timely appeal

claimant's receipt of benefits. On December 8, 2016, we granted the motion and

directed the Board "to determine if [Compact] was informed [claimant] had been

found eligible for benefits and whether [Compact] filed a timely appeal from

that determination."

      On remand, the Board "set aside its prior decision," adopted the Appeal

Tribunal's fact-findings and determined claimant initially filed for benefits on

December 2, 2012, but did not claim benefits because he continued to work at

Compact. Claimant resigned from Compact effective March 18, 2013, to accept

employment at Monmouth; he was laid off two weeks later on April 3, 2013.

      The Board further found claimant "reopened" his unemployment claim on

May 5, 2013, and the Division provided only his most recent employer,


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Monmouth, with information concerning the claim.       The Division did not

request information from Compact concerning claimant's separation of

employment or notify Compact regarding claimant's eligibility for the $17,020

in benefits paid during 2013.

      The Board determined that when defendant filed his December 2013

transitional benefits claim, he indicated he resigned from his employment with

Compact in March 2013. The Division conducted the January 23, 2014 fact-

finding conference, and the Deputy Director found claimant disqualified for

benefits as of March 17, 2013. Claimant appealed and had a hearing before the

Appeal Tribunal, which found claimant resigned from Compact to accept the

Monmouth position and was therefore disqualified from benefits and liable for

a refund.

      The Board concluded the Division was unaware claimant resigned from

his employment with Compact until he filed his claim for transitional benefits

in December 2013. Compact was first notified about the claim in June 2014

when the Division determined claimant was disqualified. The Board observed

that the Division did not have a procedure "to request prior separation

information on the paperwork to reopen an existing claim after two separate

periods of unemployment," and the information provided by claimant in support


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of his December 2013 transitional benefits claim first prompted the inquiry that

resulted in the disqualification determination.

      The Board decided claimant was disqualified from March 17, 2013,

because he voluntarily resigned from Compact to accept employment with

Monmouth, and his subsequent employment was insufficient to remove the

disqualification. Claimant was thus liable to refund the Division $17,020 he

received during 2013.

Refund Waiver Remand

      In October 2017, claimant moved for a remand for the Board to consider

his eligibility for a refund waiver based on alleged hardship. We granted the

motion, directed that the remand proceedings be completed by January 31, 2018,

and retained jurisdiction.

      In a February 28, 2018 decision, the Board explained claimant failed to

respond to two requests for the financial and medical information necessary for

a refund waiver determination.        The Board concluded it was therefore

"constrained to hold . . . claimant is not eligible for a refund" and "does not

qualify for a refund waiver pursuant to N.J.A.C. 12:17-14.2."




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                                        II.

      Our review of decisions by administrative agencies is limited, In re

Stallworth,  208 N.J. 182, 194 (2011), with claimants carrying a substantial

burden of persuasion, Brady v. Bd. of Review,  152 N.J. 197, 218 (1997). An

agency's determination "must be sustained unless there is a clear showing . . . it

[wa]s arbitrary, capricious, or unreasonable, or that it lack[ed] fair support in

the record." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,  206 N.J. 14, 27

(2011) (quoting In re Herrmann,  192 N.J. 19, 27-28 (2007)). "[I]f substantial

evidence supports the agency's decision, 'a court may not substitute its own

judgment for the agency's even though the court might have reached a different

result.'" In re Carter,  191 N.J. 474, 483 (2007) (citation omitted). The burden

of proof rests with the employee to establish a right to collect unemployment

benefits. Brady,  152 N.J. at 218.

      Claimant presents a singular argument in support of his appeal.2 He

claims there is insufficient evidence supporting the Board's determination he is


2
   We do not address the following arguments that were asserted in claimant's
brief: his due process rights were violated because Compact did not appeal the
initial determination he was qualified for benefits and his receipt of benefits was
the result of the Division's alleged errors; and he is entitled to a refund waiver
because his receipt of benefits was due to the Division's errors. In a June 14,
2018 letter to the clerk, claimant's counsel advised those arguments were
"abandoned."
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disqualified from benefits because he left his employment with Compact without

good cause attributable to the work. We are not persuaded.

      An individual is disqualified for benefits if he or she "left work voluntarily

without good cause attributable to such work."  N.J.S.A. 43:21-5(a). "'[G]ood

cause attributable to such work' means a reason related directly to the

individual's employment, which was so compelling as to give the individual no

choice but to leave the employment." N.J.A.C. 12:17-9.1(b). "An individual

shall not be disqualified for benefits for voluntarily leaving work if he or she

can establish that working conditions are so unsafe, unhealthful, or dangerous

as to constitute good cause attributable to such work." N.J.A.C. 12:17-9.4.

However, a claimant who leaves employment "for personal reasons, however

compelling, . . . is disqualified under the statute." Utley v. Bd. of Review,  194 N.J. 534, 544 (2008).

      Here, there is substantial evidence supporting the Board's determination

claimant is disqualified from benefits following his voluntary resignation from

Compact. See Carter,  191 N.J. at 483. Claimant testified he was motivated to

leave his position as an estimator with Compact due to an increasing and , what

he considered to be, onerous workload, but "[m]ere dissatisfaction with working

conditions which are not shown to be abnormal or do not affect health , does not


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constitute good cause for leaving work voluntarily."       Domenico v. Bd. of

Review,  192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Bd. of

Review,  69 N.J. Super. 338, 345 (App. Div. 1961)). Claimant did not present

any competent evidence establishing his workload was "unsafe, unhealthful, or

dangerous," N.J.A.C. 12:17-9.4, and never told his superior at Compact that he

would resign unless his working conditions changed. To the contrary, claimant

testified "the reason" he resigned from Compact "was for a better position with

more money." We therefore discern no basis to conclude the Board's decision

is "arbitrary, capricious, or unreasonable" or "lacks fair support in the record."

See Russo,  206 N.J. at 27.

      We also note that during the pendency of this appeal, we granted

claimant's motion for a temporary remand for consideration of his claimed

entitlement to a refund waiver, but he failed to provide requested medical and

financial information relevant to his assertion the ordered refund was patently

inequitable due to claimed health and financial issues. Based on claimant's

repeated failure to provide the information necessary to determine his claimed

entitlement to a refund waiver, the Board issued a final decision finding he did

not qualify for a waiver.




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      Although claimant amended his notice of appeal to challenge the Board's

decision denying the refund waiver, we do not address the issue because

claimant does not offer any argument challenging the decision. See Jefferson

Loan Co. v. Session,  397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (finding that

an issue not briefed on appeal is deemed waived).

      Affirmed.




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