Opinion
DOCKET NO. A-4243-14T2
02-10-2017
S.M., Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and LIBERTY INSURANCE ASSOCIATES, Respondents.
Peter D. Valenzano argued the cause for appellant (Mashel Law, L.L.C., attorneys; Stephan T. Mashel, of counsel and on the briefs; Anthony S. Almeida, on the briefs). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Rothstadt and Sumners. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 044,705. Peter D. Valenzano argued the cause for appellant (Mashel Law, L.L.C., attorneys; Stephan T. Mashel, of counsel and on the briefs; Anthony S. Almeida, on the briefs). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). PER CURIAM
Claimant, S. M., appeals from a final decision of the Board of Review (Board), disqualifying her from receiving unemployment benefits in accordance with N.J.S.A. 43:21-5(a), because she left employment with respondent, Liberty Insurance Associates (Liberty), voluntarily, without good cause attributable to the work. Claimant argues the Board's decision was erroneous because she established that her employment aggravated her mental health condition, justifying her resignation, and that she was also forced to resign because her working environment subjected her to "intentional harassment based upon her spiritual beliefs." Moreover, she contends the Board's determination was "arbitrary, capricious or unreasonable" because it rejected the Appeal Tribunal's finding that she did not leave work voluntarily and relied instead upon "conjecture and speculation" presented by Liberty.
The material facts presented at a hearing before the Appeal Tribunal were not disputed and can be summarized as follows. Liberty employed claimant in a clerical position from November 2005 to August 5, 2014. According to claimant, during her employment with Liberty she was teased about her spiritual "new age beliefs" at some point by one or two co-workers. She did not, however, report any comments to her employer or lodge any complaints about such conduct because she worked independently in her own office and feared that she would be forced to work in a common area with others if she complained to management.
Also, during her employment, claimant contended she suffered from depression. At some point, according to her employer's human resource director, claimant mentioned her condition. While employed, she started seeing a therapist for treatment of her condition. Claimant continued to work until July 22, 2014, when she injured her foot and was required to undergo surgery that forced her to stay at home for months. Initially, the operations manager informed claimant she could work from home and that arrangements could be made to have equipment sent to her for that purpose. Claimant decided, however, that arrangement was unacceptable to her.
While at home and not working, claimant realized that her mental health greatly improved, and after speaking to her therapist, she decided to leave Liberty's employment. Claimant notified Liberty of her decision in an email dated August 26, 2014. In her communication, claimant stated that she felt "stressed" at work, had difficulty "keeping everyone happy" there, and "never felt . . . respected." She pointed out that none of the employees with whom she worked had contacted her "regarding [her] injury or [her] well being [and a]lthough [she] typically [kept] to herself, it still hurt[]" her feelings. She also advised that staying at home made her "feel better than I have in a long time. I have [had] 3 major depressions while working there, and have pushed through them with only a few close co-workers that I felt safe speaking with." The email also stated that claimant believed it was "time for her to move on, most likely to leave the insurance business for good." She stated she did not feel "challenged" by what amounted to "basically tedious data entry." She perceived any attempt that she made to contribute to be "refused or ignored" and found Liberty offered "no room for advancement or to earn more money."
On December 14, 2014, after her disability benefits expired, claimant filed for unemployment benefits. A deputy director of the Division of Unemployment Insurance (Division) rejected her claim for benefits, finding that she voluntarily left Liberty "because [she] was dissatisfied with the working conditions [and] there [was] no evidence that the conditions of [her] employment were so severe as to cause [her] to leave available work to become unemployed."
Claimant appealed the initial determination, stating that the conditions of her work environment, including the ridicule she was subjected to by co-workers, "contribut[ed] to [her] deep depression [and] panic attacks." In support of her contentions, claimant supplied a January 19, 2015 letter from her therapist, which confirmed she suffered from "severe depression [and] panic attacks," and that claimant was under her therapist's treatment since January 2014. According to the therapist, claimant's "job most definitely contributed to her nervous conditions." Also, once claimant stopped working, her condition greatly improved and she stopped treatment in September 2014.
Claimant also supplied a letter from her treating psychiatrist. In his letter, the doctor stated that claimant was under his care from January 2014 through November 2014. He treated her for "a mixture of depression and anxiety symptoms, which gradually improved over the course of treatment." As to the reason for claimant leaving her employment, the doctor repeated claimant's "reports" to him of what happened while she was at Liberty and her feeling "unable to return [to work] following her medical disability leave."
The Division referred the matter to the Appeal Tribunal, which conducted a telephonic hearing. At the hearing, claimant and Liberty's human resource director and operations manager testified to the facts relating to claimant's employment and resignation. After considering the testimony and evidence adduced at the hearing, the Appeal Tribunal issued a written decision reversing the deputy director's denial of benefits. In the decision, it found that claimant did not leave her position voluntarily. Relying on claimant's testimony and her treatment providers' letters, the Appeal Tribunal found that she left work because the environment there "aggravated her medical condition." It concluded that claimant was not disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(a) because she "did not leave the job voluntarily without good cause attributable to such work." It also found that claimant satisfied the requirements of N.J.A.C. 12:17-9.3, which states that an individual who leaves work due to a non-work related injury that is aggravated by working conditions is not disqualified from receiving benefits.
Liberty appealed the determination to the Board. In its appeal, Liberty argued that the Appeal Tribunal did not consider the fact that claimant never provided Liberty with any medical documentation so that they could attempt to accommodate her issues, the medical documentation she did provide was questionable, and, in any event, her therapist's suggestion that she leave work did not support the Appeal Tribunal's conclusions. It also argued that claimant's resignation did not refer to her treating provider's suggestion that she terminate her employment, and Liberty was willing to allow claimant to work from home or arrange for another accommodation, if asked. According to Liberty, claimant's resignation email only addressed her dissatisfaction with the work. Liberty also challenged the Appeal Tribunal's interpretation of the regulation it relied upon in its decision.
After considering Liberty's arguments, the Board found that the Appeal Tribunal's findings of facts did "not accurately reflect the record," and it made its own findings before concluding that the Appeal Tribunal's decision must be reversed as the Board found claimant to be ineligible for benefits. Relying primarily upon her resignation email, the Board found claimant "decided to resign, because she felt that the workplace was not appreciative of her work and unsupportive during her recovery from depression and surgery." The Board also observed that claimant "never discussed her concerns with her employer," and "admitted she had a very good relationship with the human resources director, who [was] very supportive of her." In addition, there was no evidence that claimant ever complained to Liberty that she was being ridiculed nor did she "present any medical documentation or discuss[] with [Liberty] that her depression was caused or aggravated by the work."
Based on its findings, the Board rejected claimant's argument about the work aggravating her condition because she never informed Liberty about her issues. The Board not only found claimant ineligible in accordance with N.J.S.A. 43:21-5(a), it also determined that, pursuant to N.J.S.A. 43:21-16(d), she could be subjected to a demand for a refund of any benefits that may have been paid to her. On May 15, 2015, the Department of Labor and Workforce Development in fact notified claimant she was required to refund $11,308 to the State. This appeal followed.
Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). "We [also] defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Frazier v. Bd. of Review, 439 N.J. Super. 130, 134 (App. Div. 2015) (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). "'[W]hen [the] agency's decision is plainly mistaken,' however, it is entitled to no such deference and must be reversed in the interests of justice." Ibid. (alterations in original) (quoting W.T. v. Div. of Med. Assistance & Health Servs., 391 N.J. Super. 25, 36 (App. Div. 2007)).
In reaching its decision, the Board relied upon N.J.S.A. 43:21-5(a), a section of "New Jersey's Unemployment Compensation Law (Act), N.J.S.A. 43:21-1 to -24.30, [which] 'provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment.'" Frazier, supra, 439 N.J. Super. at 134 (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)). The Act disqualifies a person for benefits if "the individual has left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a).
A claimant seeking unemployment compensation benefits has the burden of establishing that he or she left work for good cause attributable to such work and not voluntarily. N.J.A.C. 12:17-9.1(c). 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 Review, 425 N.J. Super. 187, 191 (App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953)). "'[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). Causes personal to a claimant that are not shown to be attributable to the work itself do not satisfy the statutory requirement. White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977); Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967). An employee who quits a job without a sufficient work-related reason is disqualified from receiving benefits. See Self, supra, 91 N.J. at 457.
Although a claimant who leaves work for a valid but otherwise personal reason is subject to disqualification, see Morgan v. Bd. of Review, 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 her employment." Self, supra, 91 N.J. at 457. "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983). "[A]n employee [who] is unable to work because of illness . . . [must first] attempt[] to protect her employment," Self, supra, 91 N.J. at 457, if she leaves her employment and is to become eligible for benefits.
Where an employee claims that the work aggravated her medical condition, she must prove that she gave the employer an opportunity to accommodate her so as to protect her employment.
N.J.A.C. 12:17-9.3(b) . . . require[s] an employee to notify an employer of a medical condition that was aggravated by the working conditions, request an accommodation, and afford the employer an opportunity to address the matter to determine whether there was other suitable work available. [A claimant's] failure to do so disqualifies her for benefits
under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work.
[Ardan v. Bd. of Review, 444 N.J. Super. 576, 586 (App. Div. 2016).]
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 her to leave employment. See Wojcik v. Bd. of Review, 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).
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 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.
Therefore, a claimant "is not required to show . . . that her illness was caused by her job or that it prevents her from performing the duties of her employment. She is only required to show that the environment at her job aggravated her illness or will impair her continued recovery." Israel v. Bally's Park Place, Inc., 283 N.J. Super. 1, 5 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). "She [can meet] that standard by showing, through uncontroverted medical evidence, that her [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); see also Israel, supra, 283 N.J. Super. at 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." --------
In addition to establishing that a claimant suffers from the aggravation of a medical condition, she must also prove that she did all that was necessary to protect her position. She must therefore prove that she gave her employer an opportunity to provide an accommodation and notify the employer that her injury was the cause of her leaving.
Applying these standards and assuming that claimant's uncontroverted medical evidence and her unrefuted testimony proved her condition was being aggravated by her continuing employment with Liberty, she did not prove her entitlement to benefits because she never advised Liberty that the aggravation of her condition was the reason for her leaving. By not doing so, she failed to take all action necessary to protect her employment and deprived her employer of the ability to determine with her whether any accommodations would enable her to continue in her employment. Without notifying her employer of the actual reason for leaving and providing an opportunity for at least an investigation into other possibilities of employment within Liberty, she was disqualified for benefits for voluntarily leaving work without good cause attributable to such work. N.J.S.A. 43:21-5(a).
Finally, we find the Board's rejection of claimant's claim that harassment at work caused her resignation to be supported by sufficient credible evidence, R. 2:11-3(e)(1)(D), and claimant's argument to the contrary to be without sufficed merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say it was undisputed claimant never informed Liberty of any issues regarding her alleged harassment and did not mention it in her resignation email. Under these circumstances, there was no evidence that her "decision to leave employment . . . [was] compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones, . . . [or that she fulfilled an] employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION