Opinion
DOCKET NO. A-3837-14T3
11-02-2016
JUDITH HUNTER, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and GEMINI MASSAGE ENVY BRANCHBURG, LLC, Respondents.
Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorneys; Ms. Hymowitz and Melville D. Miller, Jr., on the briefs). Adam K. Phelps, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Paul D. Nieves, Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Docket No. 027,077. Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorneys; Ms. Hymowitz and Melville D. Miller, Jr., on the briefs). Adam K. Phelps, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Paul D. Nieves, Deputy Attorney General, on the brief). PER CURIAM
Judith Hunter 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, Gemini Massage Envy Branchburg, LLC. (Massage Envy), voluntarily, without good cause attributable to the work. Hunter argues the Board failed to apply the "medical good cause" exception to her claim for benefits, the Board's "deficient fact finding violated [her] procedural due process rights" and the Board should have retroactively applied the provisions of "the recently amended voluntary quit statute, N.J.S.A. 43:21-5(a), because she left her job to accept a new job." As a result, she argues the Board's final determination of her ineligibility was incorrect. We disagree and affirm.
Hunter had been employed with Massage Envy as a massage therapist from October 2008 until April 4, 2014. At the time she left, she anticipated beginning work with a new employer involving a different type of job. When that position did not materialize, for reasons unrelated to Hunter, she applied for benefits. A deputy director of the Division of Unemployment Insurance (Division) rejected her claim for benefits, finding that she voluntarily left Massage Envy to accept employment, which did not "constitute good cause attributable to the work." Hunter appealed, stating that she was pursuing a claim only because her promise of new employment, which she described as an "opportunity to excel in a new and promising career," fell through.
The Division referred the matter to the Appeal Tribunal, which, after a telephonic hearing, affirmed the deputy director's initial decision. Hunter appealed, this time stating that she "also left because [she had] an injury that prevented [her] from, doing [her] job as a massage therapist[, which she had] stated . . . on [her] initial claim . . . ." In response, the Board remanded the matter to the Appeal Tribunal for the purpose of taking "additional testimony from [Hunter] and the employer regarding [her] reason(s) for leaving the job voluntarily."
In anticipation of the scheduled hearing, Hunter's attorney submitted nineteen pages of medical documents to the Appeal Tribunal "for submission as evidence." The documents consisted primarily of treatment records and an MRI test result, all from 2012. An August 2012 hospital record indicated she was diagnosed with "tendinitis and bursitis." In addition, the packet contained three notes from doctors who addressed Hunter's ability to work: [a]n August 10, 2012 note from Dr. Pilar Tam that stated "[t]he above patient has [right] arm pain so is advised to stay off work for 2 weeks;" an October 10, 2012 note from a bone and joint specialist that stated Hunter was able to return to work but asked "please allow[] [patient] to massage for 2 hours and rest for one, please follow this pattern throughout her work day;" and a post-employment note dated November 3, 2014 — two days before the scheduled hearing - from an orthopedic practice that stated Hunter was "under [its] care for chronic [r]otator cuff tear that will not heal without surgery. Due to her pain and symptoms, the patient may benefit from changing her profession. The above is medically necessary in order to alleviate symptoms."
At the ensuing telephonic hearing, Hunter and Massage Envy's managing member, Kevin Rupert, testified to the facts relating to Hunter's employment and resignation. Hunter confirmed that when she gave notice to Massage Envy she was leaving its employment, she only stated that she was doing so for "personal reasons." She testified that her "personal reasons" were based upon a 2012 injury she sustained to her shoulder "and [she] left because of that injury [as] [i]t became very difficult to do the job [because] she was in pain all the time and [] started looking for employment elsewhere[, which she] found [but] which did not come true." She testified that her injury was sustained at work, but she did not know how it happened. Although she started experiencing pain in approximately August 2011, it was not until her shoulder hurt enough in August 2012 that she went to the emergency room and to a doctor and understood that she had an injury to her rotator cuff. She was not sure that her doctor told her it was caused by her job, but she did receive restrictions relating to her work. Hunter advised Massage Envy of the restrictions and it made accommodations for her, allowing her to work two hours and then take an hour break, which was in accordance with the doctor's October 10, 2012 note.
According to Hunter, she was under medical care throughout 2012. She did not need further medical care after that because an injection she received from one of her doctors "enabled [her] to continue working for another two years." Although she received no additional medical treatment before she left work, she did ask Massage Envy for further accommodations a few months before she left her job. Pursuant to her request, Massage Envy agreed to not assign Hunter more strenuous work such as deep tissue massages. The change in her assignment resulted in less income because she could not service her clients as she had in the past. Despite that accommodation, Hunter decided she needed to leave her job when the pain from her shoulder began to keep her up at night.
Hunter ultimately left her position when she thought she had secured a new job in retail. That position did not materialize because the store where she anticipated she would be working suddenly closed. After learning of the store's closing, Hunter waited before applying for benefits because she thought she could return to her job as a massage therapist. She later determined that she could not perform that type of work any longer and filed for benefits.
According to Rupert, Hunter never mentioned she was leaving her employment because of her injury. Rather, he testified that Massage Envy had been accommodating Hunter's injury when she advised that she was leaving to "start[] her own business or [to become] involved with a business as a part owner." He also testified that had Massage Envy been asked it would have further accommodated Hunter as it had for other employees who experienced the same type of problem, including allowing for leaves of absence.
After considering the testimony and evidence adduced at the hearing, the Appeal Tribunal issued a written decision affirming the deputy director's denial of benefits. In the decision, it found that Hunter left her position voluntarily to secure new employment and that while she experienced "pain due to a shoulder injury since 2012 [she] did not seek medical attention for her condition between December 2012 and November 2014." Quoting from our decision in Rider College v. Bd. of Review, 167 N.J. Super. 42, 46 (App. Div. 1979), the Appeal Tribunal noted that voluntarily leaving a position to accept a new job was personal and not related to the work. Further, the decision referred to a prior Board ruling in an unrelated matter that "a claimant who quit a job because she could not keep up with the required work did so without good cause because . . . the employer did not find it necessary to dismiss her . . . ."
The Appeal Tribunal also found that the medical documentation presented by Hunter was "outdated and [did] not . . . indicate that the job caused the condition . . . [,]" and was not "connect[ed] to her decision to leave . . . as she was not under [a] doctor's care at all for more than a year prior to leaving." As a result, the Appeal Tribunal determined that Hunter left her job to seek other employment, not because of her alleged medical condition, and concluded Hunter left work voluntarily without good cause attributable to the work and was thus not entitled to benefits.
Hunter appealed the determination to the Board. In her appeal, Hunter argued that the Appeal Tribunal improperly imposed a requirement that medical documentation of an injury as required by N.J.A.C. 12:17-9.3(d) had to be "from a specific period of time" rather than just documenting an injury that existed at the time of separation from work, regardless of when the medical documents were generated and without regard to whether her job caused her initial injury. She also faulted the Appeal Tribunal for finding that she delayed applying for benefits because she was hoping to return to a position as a massage therapist.
After considering Hunter's arguments, the Board affirmed the Appeal Tribunal's determination on March 11, 2015. 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. Board 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 Enforcement 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. (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, 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, 14 6 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 for 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 458, if she leaves her employment and is to become eligible for benefits.
In order to establish that a work-related aggravation of a medical condition required a claimant be deemed to have left work voluntary but for good cause attributable the work, the claimant must prove the aggravation to the injury and 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. Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971). An employee who suffers a physical injury that was not work-related and decides to quit because her work duties were detrimental to that injury is deemed to have voluntarily left employment without good cause attributable to the work. De Lorenzo v. Bd. of Review, Div. of Emp't Sec., 54 N.J. 361, 364 (1969). "[T]he aggravation of a preexisting condition[, however,] constitute[s] good cause under the statute . . . ." Wojcik, supra, 58 N.J. at 344. 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), cert. 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 "[w]hen 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 Hunter's uncontroverted medical evidence and her unrefuted testimony proved her condition was being aggravated by her continuing as a massage therapist, she did not prove her entitlement to benefits because she never advised Massage Envy 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 further accommodations would enable her to continue in her employment. None of Hunter's medical evidence stated that she was unable to continue working at Massage Envy, even with a change of job assignment. In fact, the equivocal nature of her post-employment note from a doctor even raised a question as to whether she had to change positions at all. See e.g. Wojcik, supra, 58 N.J. at 351. Regardless, 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 Massage Envy, she was "disqualified for benefits for voluntarily leaving work without good cause 'attributable to such work." N.J.S.A. 43:21-5(a).
We turn next to Hunter's argument that she should not be disqualified from receiving benefits because she left her employment to secure a better position. According to her argument, we should give retroactive application to an amendment to N.J.S.A. 43:21-5(a) that became effective May 4, 2015, after Hunter filed this appeal. The amendment allows an employee to receive benefits if he or she leaves employment for equal or better employment and "commences [a new position] not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer." L. 2015, c. 41, § 1.
We conclude that Hunter's argument is without merit as we have previously rejected the identical contention in a prior decision, see Arden, supra, 444 N.J. Super. at 586-90. We have no cause to depart from our earlier analysis and the determination that the amendment did not warrant retroactive application.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION