Opinion
DOCKET NO. A-2321-12T4
03-31-2015
BONNIE M. STINGER, Appellant, v. BOARD OF REVIEW, and MURPHY'S OF SOUTH JERSEY, INC., Respondents.
Bonnie M. Stinger, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Murphy's of South Jersey, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket No. 373,912. Bonnie M. Stinger, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Murphy's of South Jersey, Inc. has not filed a brief. PER CURIAM
Bonnie M. Stinger 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, Murphy's of South Jersey Inc. (Murphy's), voluntarily, without good cause attributable to the work. Stinger argues she should not be disqualified from receiving benefits because her employer failed to provide her with "any alternative solution to resignation" when she was willing to return to work following her disability leave. As a result, she argues the Board's final determination of her ineligibility was incorrect.
The deputy director initially approved Stinger's claim for benefits. Murphy's appealed and, after a telephonic hearing, the Appeal Tribunal affirmed the deputy director's initial decision. Murphy's appealed again and the Board reversed, denying Stinger unemployment benefits.
We have carefully considered the record and the applicable law. We reverse and remand for restoration of Stinger's benefits.
At the hearing before a claims examiner, Stinger and Murphy's store manager, David Karugno, testified to the facts relating to her employment and resignation. We discern the following facts from their testimony.
Murphy's employed Stinger as a deli clerk, on a part-time basis from August 21, 2006 through July 10, 2011, when she took a disability leave. She received state disability compensation from July through late January 2012. The reason for her disability was "severe neck pain" which caused her to lose "functionality of [her] hands." As a result, she could not hold or lift anything and experienced "numbness." According to Stinger, she "could not do deli work because that involves lifting and holding things in your hand for a length of time, which [she could not] do either. [She could not] lift any substantial amount of weight [and] couldn't even do dishes there because that requires you to hold on to them as you wash them. [She had] very little . . . spin/motor skills in [her] hands."
Stinger left work on July 10, 2011, after she began to "drop[] stuff [and] . . . lost control of her hands and feeling[s]" in them. She immediately sought medical help for her condition. Her doctor wrote a note asking Stinger be excused from work "until further evaluation from a neurologist. She was having some nerve issues with her upper extremities making work difficult at this time." Stinger either faxed or brought the doctor's note to Murphy's within two days of leaving her position. She then spoke to Karugno, told him what was happening, to which he responded that she should keep him informed of what was going on.
While she was out of work, Stinger kept "in constant contact" with Murphy's. The company's human resource department completed the employer's portion of her disability forms. In her conversation with Murphy's representative, Denise Lucas, she was told she was eligible for "FMLA" (Family Leave), but never told Stinger what she needed to do, if anything, to take that leave. In addition to her discussions with Karugno and Lucas, she claimed she continued to send them copies of notes from doctors as to her status. In December 2011, Stinger sent a note from her treating physician which stated, "Please keep patient out of work [until] 2/1/12. [Patient] to have cervical . . . injection due to severe pain."
Shortly before she "resigned," Stinger spoke with Lucas about the possibility of returning to work to perform some other function, because, as Stinger told Lucas, she did not want to resign. Stinger knew there was no such thing as "light duty" in the deli, but discussed it with Lucas while inquiring about alternatives. In response, Lucas told her "I can't tell you what to do" and further stated she could not make Stinger stay at her job. She instructed Stinger to email Karugno with her decision.
According to Karugno, Stinger did have options which Lucas did not discuss with her. First, as long as Stinger continued to provide doctor's notes, all of her absences were excused and her position was secure. Second, other work might have been available to Stinger if she provided information about her specific limitations when and if she returned to work. Upon receipt of that information, Murphy's human resource department would consider it and make a decision. Without that information, light duty "was not even an option" because Murphy's was not "even given the restrictions that [Stinger] would have." When Karugno was asked whether there were positions available which did not require the same type of use of Stinger's hands, Karugno reiterated, it depended on the nature of her restrictions. He stated:
I would say no based on the . . . line of work we're in. But, again, I mean we don't even know . . . we weren't even, as far as I know, given the . . . you know, it wasn't . . . there was no doctor note saying that she's no[] longer able to use her hands or . . . not able to do this. We weren't given any restrictions.
Being unaware that if she provided additional medical information to Murphy's it might be able to secure her a different position, Stinger sent Karugno an email, on January 30, 2012, which stated:
Dave, I went to the neurologist today, . . . they want to send me for more testing. Unfortunately, I am not able to return to work as a deli person. There is no such thing as light duty . . . in that position. I am forced to resign from my position due to that fact. . . . Just to let you know this is not really what I want . . . to do but I see no other option.Karugno did not respond to the letter and as a result of receiving it, Murphy's considered Stinger to have voluntarily resigned.
After she left her employment, Stinger filed for unemployment benefits. Murphy's appealed the deputy director's initial determination, which the Appeals Tribunal later affirmed. In the Appeals Tribunal's written decision, the examiner first cited to N.J.A.C. 12:17-9.3(b) which 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.The examiner then found Stinger could have remained on medical leave as long as she provided medical documentation. Contrary to that policy, Lucas led Stinger to believe that Stinger "must make a decision regarding her employment status" without informing her of that option. Similarly, the examiner found while Murphy's claimed they were not given the medical information it needed to "establish whether suitable work was available for [Stinger,]" Lucas did not tell Stinger that was an available option. The examiner concluded:
Substantial evidence provided at the hearing established that [Stinger] resigned from her position effective 1/30/12 because no light duty was available and she still could not perform her regular duties at the time due to her medical condition. As [Stinger] inquired about suitable work and [her] neurological issues would not allow her to perform her regular duties, [Stinger] has shown good cause for her resignation. Therefore, no disqualification applies under N.J.S.A. 43:21-5(a), as [Stinger] did not leave work voluntarily without good cause attributable to such work.
In the Board's subsequent review, it adopted the Appeal Tribunal's findings except for correcting the date of resignation to January 30, 2012, and noting Stinger "was not released as able to work by her physician until February 1, 2012." However, the Board disagreed with the Appeal Tribunal's conclusion. In its written decision, the Board stated:
We disagree with the opinion of the Appeal Tribunal that [Stinger] had good cause attributable to the work to leave the employment. [Stinger] resigned her job because the employer did not have light duty work available to her. Instead of resigning, [Stinger] could have remained on leave until she was physically able to perform the duties of her employment. [Stinger's] resignation was without good cause attributable to the work and [she] is disqualified for benefits as of January 29, 2012 under N.J.S.A. 43:21-5(a).
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. (citation and internal quotation marks mitted). "We [also] defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Frazier v. Bd. of Review, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 3-4) (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." Id. at 4 (citation and internal quotation marks omitted).
As noted in its decision, the Board reversed the Appeals Tribunal in reliance 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, slip op. at 4 (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)). The Act disqualifies a person for 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 . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . .
[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).
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . . [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) (citations and internal quotation marks omitted).]
"'[G]ood cause attributable to such work'" requires "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). Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a). See Self v. Bd. of Review, 91 N.J. 453, 457 (1982) (explaining "a departure not attributable to work . . . will disqualify the employee from receiving unemployment benefits").
Moreover, a claimant who leaves work for a valid but otherwise personal reason is subject to disqualification pursuant to that same statute. Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) (holding an "employee's problem of commuting to and from his [or her] work may be considered a good personal reason for leaving his [or her] employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work" because "[c]ommuting is usually considered a problem of the employee"). "The only recognized exception to that rule is where an employee is unable to work because of illness and attempts to protect her employment." Self, supra, 91 N.J. at 457 (citing DeLorenzo v. Bd. of Review, 54 N.J. 361, 364 (1969)) (emphasis added).
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 his employment. Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971). Medical proof of "the aggravation of a preexisting condition would constitute good cause under the statute." Ibid.
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). 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. 327 (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. (citations omitted). "This constitutes 'good cause[]'" preventing her from being "disqualified from unemployment benefits." Ibid. (citations omitted).
We conclude Stinger's uncontroverted medical evidence and her unrefuted testimony proved her condition would be aggravated if she returned to her former employment. Both medical notes considered by the examiner and her testimony confirmed her job would cause her to suffer pain and loss of sensation. Under these circumstances, she was not "disqualified for benefits for voluntarily leaving work without good cause 'attributable to such work,'" because Murphy's did not offer "other suitable work available which [Stinger] could have performed within the limits of [her] disability." N.J.A.C. 12:17-9.3(b)
We also believe Stinger's decision to resign was not voluntary under the circumstances. As noted,
when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work . . . . [D]isqualification arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are detrimental to an existing physical condition or state of health which did not have a work connected origin.
[DeLorenzo, supra, 54 N.J. at 364.]
We conclude Lucas' failure to discuss Stinger's options was tantamount to not reinstating her had she been able to return to her former assignment. Stinger did not voluntarily leave her employment. She took every possible precaution to preserve her job. She was, however, unaware that as long as she continued to provide medical support for her absence her job was secure. She also did not know that if she provided medical information about her specific limitations there was a chance Murphy's could have found her another position. Lucas had an opportunity to provide Stinger with her options but, for some reason, failed to discuss them with Stinger. Absent that information, Stinger could not make a knowing and intelligent decision about whether to continue her employment. We are satisfied, as was the deputy director and Appeal Tribunal, that under these unusual circumstances, Stinger was entitled to benefits, having not left her employment voluntarily. Accordingly, the Board's decision was legally incorrect, not supported by the facts, and therefore, arbitrary, capricious, and unreasonable.
Reversed and remanded for reinstatement of benefits. 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