Opinion
DOCKET NO. A-2510-12T2
03-20-2015
THOMESENE JAMES, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and QUICK CHEK CORPORATION, t/a QUICK CHEK, Respondents.
Zachary R. Wall argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Mr. Wall, on the brief). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondent Quick Chek Corporation has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 380,159. Zachary R. Wall argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Mr. Wall, on the brief). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondent Quick Chek Corporation has not filed a brief. PER CURIAM
Claimant Thomesene James appeals from an April 10, 2014 final agency decision of the Board of Review ("the Board"). Adopting the findings of the Appeal Tribunal, the Board concluded that claimant was disqualified from unemployment benefits under N.J.S.A. 43:21-5(a), because it appeared that she had left work voluntarily without good cause attributable to her employment. Claimant instead contends that she left work for legitimate medical reasons, and that her employer acted unreasonably in failing to arrange to accommodate her upon her medically-cleared return from leave. She also contends that, in accordance with N.J.A.C. 12:17-9.3(c), she had taken reasonable steps to preserve her employment.
We derive the following background from the hearing before the Appeal Tribunal, at which claimant participated without counsel. Claimant was employed as an assistant manager at Quick Chek Corporation ("Quick Chek") from August 24, 2008 through October 30, 2011. As an assistant manager, claimant worked forty hours per week, with regular days off on Thursday and Friday. She typically worked a shift from 3:00 p.m. to 11:00 p.m.
From October 31, 2011 through January 18, 2012, claimant went out on disability leave due to a herniated disc in her lower back. Claimant acknowledged at the hearing that her herniated disc was not a work-related injury. She testified that she had "slight, light back problems" before taking her leave from Quick Chek in October 2011. As she described it, those problems were "not severe where it was causing a problem for me standing."
According to claimant's testimony, when she sought to return to work in early 2012 she provided her employer with a note dated January 11, 2012 from one of her physicians, Dr. Cyrus Vosough. Dr. Vosough stated that claimant was cleared to resume working one week later, on January 18, 2012. He noted that she suffered from "left shoulder and low back pain," but that she could resume working with certain restrictions. In particular, Dr. Vosough indicated that claimant could work up to four hours per day, but should not stand for periods longer than fifteen minutes, and should not lift more than ten pounds. Claimant also presented notes from two other physicians confirming her medical condition.
According to claimant, her employer did not allow her to return to her job despite her doctor's clearance allowing her to resume working with certain restrictions. She was prepared to return to work, so long as she would not be required to stand for long periods of time. She testified that she enjoyed her work and that she was a "very good manager." She insisted that she would have returned to work at Quick Chek if her restrictions had been accommodated.
According to claimant, work schedules at Quick Chek were determined one month in advance. However, the assistant manager who was in charge of scheduling apparently had not been aware that claimant was cleared to return to work. Specifically, claimant was omitted from the work schedule for January 18, 2012 through February 7, 2012, despite her desire to return. Her employer evidently did not offer to accommodate her back restrictions. Instead, according to claimant, at least one of her supervisors suggested that if she was still having medical difficulties, she should simply continue with treatment.
Claimant's employer did not participate in the hearing or present any testimony in opposition to her claim. Nevertheless, the hearing examiner concluded that claimant was disqualified from unemployment benefits under N.J.S.A. 43:21-5(a) because she appeared to have left her job voluntarily without good cause attributable to the work. The hearing examiner characterized claimant's medical problems, which had not been caused by her work at Quick Chek, as "personal" in nature. The examiner also found that the employer was unable to accommodate the restrictions specified by claimant's doctor.
N.J.S.A. 43:21-5(a) provides in pertinent part that a claimant for unemployment benefits may be disqualified for such benefits
[f]or 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, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case.
[N.J.S.A. 43:21-5(a) (emphasis added).]
The phrase "good cause," while not statutorily defined, has been construed to mean "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady v. Bd. of Review, 152 N.J. 197, 214 (1997). A court's determination of good cause is based on an "ordinary common sense and prudence" test. Ibid.
A claimant bears the burden of proof to demonstrate that he or she is entitled to unemployment benefits. Id. at 218. An employee who leaves a job voluntarily thus bears the burden of proving that he or she did so with good cause attributable to work. Ibid. In addition, a claimant is responsible for doing "whatever is necessary and reasonable in order to remain employed." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997).
When a claimant for unemployment benefits has left work for health or medical reasons, N.J.A.C. 12:17-9.3(d) requires that "medical certification" be provided to support a finding of good cause attributable to work. Subsections (b) and (c) of that regulation amplify the pertinent requirements as follows:
(b) 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.
(c) Notwithstanding (b) above, an individual who has been absent because of a personal illness or physical and/or mental 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. A reasonable effort is evidenced by the employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment.
[N.J.A.C. 12:17-9.3 (b), (c) (emphasis added).]
The Supreme Court applied these principles in the seminal case of DeLorenzo v. Board of Review, 54 N.J. 361 (1969), upon which claimant's appellate counsel principally relies to support her argument that she did not voluntarily quit. In DeLorenzo, an unemployment claimant who was ill for causes not related to her employment received unemployment benefits for a period of time after recovering from her illness. Id. at 362. The claimant in DeLorenzo later tried to return to her job but was unsuccessful because there was no work available at her employer. Id. at 363. On these facts, the Court concluded that a "mere failure to work because of illness" did not constitute a voluntary quit within the meaning of the unemployment compensation statute. Id. at 364.
As the Court explained in DeLorenzo, an employee who had become ill but took steps "reasonably calculated to protect the employment" did not voluntarily leave work within the meaning of the statute. Ibid. The Court reasoned that disqualification would arise only in situations where an employee who had suffered a physical injury that was not work-related decided to quit because his or her work duties were detrimental to that injury. Ibid.
The application of these principles here is complicated by gaps in the record and the absence of any factual testimony from an employer's representative. Although claimant's back condition admittedly was not caused by her employment at Quick Chek, the note from Dr. Vosough impliedly suggests that her condition would have become aggravated if she returned to her job without adhering to the restrictions on her standing, lifting, and work hours. See N.J.A.C. 12:17-9.3(b) (concerning the effect on eligibility of an injury "aggravated by working conditions"). The record does not substantiate whether "there was no other suitable work available which [claimant] could have performed within the limits of [her] disability." Ibid.
For example, the record does not clearly rule out whether claimant could have sufficiently performed her duties if she were provided with a stool or a chair, and refrained from lifting items over ten pounds. There also was no testimony from a supervisor showing that it was not feasible to accommodate claimant by allowing her to work shorter shifts. In fact, the record is murky as to whether claimant ever made a clear request for accommodation, and whether such a request, if made, was unambiguously rejected by her employer.
It is conceivable from the limited record before us that claimant did not actually intend to quit her job, but that she did not return simply because of misunderstanding and miscommunication. Her supervisor's cryptic alleged remark that she should get the treatment she needed does not necessarily mean that the company would have refused to try to accommodate her limitations if she had made her intentions clearer. Her absence from the monthly schedule in January-February 2012 does not mean that the schedule could not have been revised. On the whole, it is not clear from the record that claimant failed to make a "reasonable effort to preserve . . . her employment." N.J.A.C. 12:17-9.3(c).
The medical documentation in the record also raises unresolved questions. Claimant's testimony before the Appeal Tribunal suggests that her disc condition did get worse during a period beginning in May 2011, when she indicated that she first started experiencing symptoms. She contended that during that time she kept working because "the company needed help" and did not have enough coverage for shifts. She testified that she should have gone out on leave in May 2011 but did not so then because she was trying to help her manager. When she eventually did go out on leave in October 2011, it is plausible that she was left with no realistic option at that point because her back condition had been so aggravated by then due to the nature of her job. If she could provide medical documentation to this effect, it could support a finding that her departure was indeed due to good cause attributable to work. The doctor's notes supplied by claimant substantiate her condition to some extent, but they do not resolve the question of aggravation sufficiently for appellate review.
Although we recognize our obligation to accord substantial deference to the Board in its role as an administrative agency, see Brady, supra, 152 N.J. at 210, the multiple unresolved issues presented here warrant a remand to develop the record further and reconsider claimant's eligibility. Claimant shall be afforded the opportunity to present additional evidence, including further medical proofs, in a new hearing addressing the issues we have discussed in this opinion.
Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION