A.M v. BOARD OF REVIEW DEPARTMENT OF LABOR and MARK IV TRANSPORTATION LOGISTICS, INC

NOT FOR PUBLICATION WITHOUT THE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-0546-19T4

A.M.,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and MARK IV TRANSPORTATION
& LOGISTICS, INC.,

     Respondents.
_______________________________

                   Submitted October 19, 2020 – Decided November 6, 2020

                   Before Judges Rothstadt and Mayer.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 184,062

                   A.M., appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent Board of Review (Jane C. Schuster,
                   Assistant Attorney General, of counsel; Andy Jong,
                   Deputy Attorney General, on the brief).
             Respondent Mark IV Transportation & Logistics, Inc.
             did not file a brief.

PER CURIAM

      Claimant, A.M.,1 appeals from a final agency decision of the Board of

Review (Board), disqualifying him from receiving unemployment benefits in

accordance with  N.J.S.A. 43:21-5(a), because he left his employment as a tractor

trailer truck driver with respondent, Mark IV Transportation & Logistics, Inc.

(MT&L), voluntarily, without good cause attributable to the work. In reaching

its decision, the Board adopted the findings of the Appeal Tribunal that

concluded, under N.J.A.C. 12:17-9.3, claimant, who argued he left work due to

a medical condition, "never submitted medical documentation regarding his

ability to work, or that he could no longer continue to work. The claimant did

not ask the employer if there was any other work for him which did not require

him to drive a tractor trailer."

      On appeal, claimant argues the Board's decision was erroneous because

his employer did not "offer[ him] another position due to [his] disability ," and

he was entitled to "reasonable accommodations under the American [sic] with




1
  We use claimant's initials to protect his privacy, because the case concerns
details of his medical condition.
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Disabilities Act." We affirm as we conclude the Board's decision was supported

by substantial credible evidence and it was legally correct.

      The material facts established at a hearing before the Appeal Tribunal

were not disputed and are summarized as follows. MT&L employed claimant

as a truck driver from August 2017 through May 3, 2019, when he advised that

he could no longer work. According to claimant, he was seen by his doctor a

few days earlier and was told that due to his diabetes, when claimant needed in

the future to renew his medical qualification to maintain his commercial driver's

license (CDL), he probably could not do so. However, the doctor never told

claimant to stop working, and claimant never provided his employer with any

documents from his doctor confirming that he was suffering from a medical

condition that prevented him from continuing his employment. Moreover, he

did not make inquiry about performing other duties at MT&L, such as working

in its warehouse, because that work paid less.

      Thereafter, claimant applied for unemployment benefits, which a deputy

director of the New Jersey Department of Labor and Workforce Development

rejected after having determined that claimant was disqualified from receiving

benefits because he "left [his] job voluntarily . . . for personal medical reasons

[and] did not request other work from" MT&L. Claimant appealed that initial


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determination, and the Appeal Tribunal scheduled a telephonic hearing that

claimant and his employer's representative participated in on July 3, 2019.

      During the hearing, claimant testified that when he went to see his doctor

for his "certificat[ion]," that due to his "A1C 2" level being "out of this world,"

claimant would not be able to renew his mandated Medical Examiner Certificate

(medical card) which is required to maintain a CDL in New Jersey.3 According

to claimant, the medical card could not be maintained if there was a danger of

him passing out because of his diabetes. However, claimant confirmed that his

doctor did not tell him to stop driving but that claimant should "think about it"

and that the doctor did not give claimant anything in writing that stated he should

stop working. Moreover, claimant also confirmed that, as of the date of the

hearing, his CDL was still "good" and that he did not seek to get his CDL

renewed because he knew his A1C numbers "were not there." He recognized

that his diabetes was not work related as it was not caused nor aggravated by his




2
  "A1C" refers to a test used to track an individual's average blood sugar over a
period of three months. See Diabetes, All About Your A1C, Centers for Disease
Control and Prevention, https://www.cdc.gov/diabetes/managing/managing-
blood-sugar/a1c.html (last visited Oct. 23, 2020).
3
   According to claimant, he needed to have his "medical card" updated every
six months in order to be permitted to drive a tractor trailer.
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job, but he decided to leave work because he did not want to faint while driving

as he once did in his doctor's office.

      Claimant also explained that on May 3, 2019, he advised MT&L's

representatives that "he was having problems with his diabetes" and that he

could not meet the requirements for the medical certification necessary to

maintain his CDL. In response, claimant testified that the MT&L representative

told him "good luck" and handed him his paycheck. Claimant did not ask about

other positions, such as doing warehouse work, because he would be paid less.

      MT&L's representative testified that claimant was "a great employee" and,

had he not resigned, he could have continued working for the company. She

also confirmed that as a truck driver claimant was required to get a physical

completed periodically.

      The Appeal Tribunal issued a written decision on July 5, 2019, affirming

the deputy director's initial determination. Citing to N.J.A.C. 12:17-9.3, the

decision explained that claimant neither provided the required medical

certification nor made a reasonable effort to preserve his employment by "not

ask[ing] the employer if there was any other work for him which did not require

him to operate a tractor trailer."




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      Claimant appealed the Appeal Tribunal's determination to the Board and

argued that, because of his health condition, he did not adequately explain to the

Appeal Tribunal the extent of his medical issues and how his job impacted them.

He also stated he expected that his employer would have offered him other work

once he advised he could no longer drive a truck. On August 26, 2019, the Board

issued its final agency decision affirming the Appeal Tribunal's determination.

This appeal followed.

      The scope of our review of an administrative agency's final determination

is strictly limited. Brady v. Bd. of Rev.,  152 N.J. 197, 210 (1997). The agency's

decision may not be disturbed unless shown to be arbitrary, capricious, or

unreasonable or inconsistent with the applicable law. Ibid.; In re Warren,  117 N.J. 295, 296 (1989). "If the Board's factual findings are supported 'by sufficient

credible evidence, courts are obliged to accept them.'" Brady,  152 N.J. at 210

(quoting Self v. Bd. of Rev.,  91 N.J. 453, 459 (1982)). Thus, "[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." Ibid. (alteration in original) (quoting

Charatan v. Bd. of Rev.,  200 N.J. Super. 74, 79 (App. Div. 1985)).


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      In our review, we also "give due regard to . . . the agency's expertise where

such expertise is a pertinent factor." Clowes v. Terminix Int'l, Inc.,  109 N.J.
 575, 587 (1988) (quoting Close v. Kordulak Bros.,  44 N.J. 589, 599 (1965)).

"However, '[i]n an appeal from a final agency decision, an appellate court is in

no way bound by the agency's interpretation of a statute or its determination of

a strictly legal issue.'" Melnyk v. Bd. of Educ. of Delsea Reg'l High Sch. Dist.,

 241 N.J. 31, 40 (2020) (quoting Ardan v. Bd. of Rev.,  231 N.J. 589, 604 (2018)).

      Applying these principles, we find no error in the Board's decision to deny

benefits.   In order to avoid disqualification, claimant had the burden of

establishing that he left work for "good cause attributable to work." Brady,  152 N.J. at 218. "Good cause attributable to such work" is defined by N.J.A.C.

12:17-9.1(b) as "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." An employee has left work "voluntarily" within the meaning of

the statute "only if 'the decision whether to go or to stay lay at the time with the

worker alone.'" Lord v. Bd. of Rev.,  425 N.J. Super. 187, 191 (App. Div. 2012)

(quoting Campbell Soup Co. v. Bd. of Rev.,  13 N.J. 431, 435 (1953)). An

employee who quits a job without a sufficient work-related reason is disqualified

from receiving benefits. See Self,  91 N.J. at 457.


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       Although a claimant who leaves work for a valid but otherwise personal

reason is subject to disqualification, see Morgan v. Bd. of Rev.,  77 N.J. Super.
 209, 214 (App. Div. 1962), there is a "recognized exception to that rule . . .

where an employee is unable to work because of illness and attempts to protect

[his] employment." Self,  91 N.J. at 457; see also Ardan,  231 N.J. at 595–96.

Where health prevents an employee from working, it is the employee's

obligation to establish through competent medical evidence that a health issue

attributable to work forced him to leave employment. See Wojcik v. Bd. of

Rev.,  58 N.J. 341, 344 (1971). When a non-work connected physical condition

makes it necessary for an individual to leave work due to an inability to perform

the job, the individual shall be disqualified for benefits for voluntarily leaving

work, unless the work is medically proven to aggravate the condition. N.J.A.C.

12:17-9.3(b).4 Therefore, a claimant "is not required to show . . . that [his]


 4 N.J.A.C. 12:17-9.3(b) provides:

             An individual who 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 will not be disqualified for benefits for
             voluntarily leaving work without good cause
             "attributable to such work," provided there was no other
             suitable work available which the individual could have
             performed within the limits of the disability. When a


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                                        8
illness was caused by [his] job or that it prevents [him] from performing the

duties of [his] employment. [He] is only required to show that the environment

at [his] job aggravated [his] illness or will impair [his] continued recovery."

Israel v. Bally's Park Place, Inc.,  283 N.J. Super. 1, 5 (App. Div. 1996). "[He

can meet] that standard by showing, through uncontroverted medical evidence,

that [his condition] has been and will be aggravated by the [work] environment."

Ibid.   The claimant is required to establish an aggravation by supplying a

medical certification supporting the claim that the work aggravated the

condition. N.J.A.C. 12:17-9.3(d)5; see also Israel,  283 N.J. Super. at 5.

        Here, claimant failed to offer any competent medical evidence that

established his diabetes prevented him from working when he left his position.

Without such evidence, he failed to meet his burden. To meet this burden, he

had to supply a "medical certification . . . to support a finding of good cause

attributable to the work." N.J.A.C. 12:17-9.3(d).


             non-work connected physical and/or mental condition
             makes it necessary for an individual to leave work due
             to an inability to perform the job, the individual shall
             be disqualified for benefits for voluntarily leaving
             work.
5
  The regulation states, "When an individual leaves work for health or medical
reasons, medical certification shall be required to support a finding of good
cause attributable to work."
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      In addition to establishing that a claimant suffers from the aggravation of

a medical condition, he must prove that he did all that was necessary to protect

his position. Yardville Supply Co. v. Bd. of Rev.,  114 N.J. 371, 376 (1989). He

must therefore prove that he gave his employer an opportunity to provide an

accommodation and . . . "that, at the time of the claimant's departure, either the

employer had no position available that would accommodate the claimant's

condition or the claimant would not have been assigned to any such position. "

Ardan,  231 N.J. at 607. Here, not only did claimant testify he was not interested

in other work that did not involve driving because it paid less, but he failed to

even attempt to determine what those other opportunities were. "In short,

[claimant] failed to establish that no 'suitable work' was available to [him] at"

MT&L. Id. at 608.

      Under these circumstances, we conclude that the Board's decision was not

arbitrary, capricious or unreasonable as there was no medical evidence to

support claimant's contentions, and claimant failed to otherwise meet his burden

to establish there was no other work available for him.

      Affirmed.




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