Opinion
DOCKET NO. A-1049-12T4
07-03-2014
DONNA FITZGERALD, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and HEALTHCARE UNIFORM COMPANY INC. Respondent.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent Healthcare Uniform Company, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Board of Review, Department of Labor, Docket No. 373,590.
Carolyne S. Kalson, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
Respondent Healthcare Uniform Company, Inc. has not filed a brief. PER CURIAM
Donna Fitzgerald appeals from a October 3, 2012 final decision of the Board of Review that she was ineligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. We affirm.
Hopkins worked for Healthcare Uniform Company, Inc. (HUC) as a store manager from January 1996 until the end of November 2011. She filed an unemployment benefits claim based on her involuntary diminished earnings and began collecting benefits January 8, 2012. On May 13, 2012, Fitzgerald became temporarily disabled due to a fall outside of work. She filed for disability benefits. Meanwhile, HUC appealed her eligibility for unemployment benefits and a hearing was scheduled before the Appeal Tribunal on July 17, 2012. The notice of telephonic hearing was mailed to the parties on July 3, 2012. Three days later Fitzgerald faxed back a note handwritten on the hearing notice that stated:
I am presently collecting Temporary Disability Ins. I was advised to discontinue p/t unemployment benefits and to file my disability papers after surgery on the 15th [of May].
At the beginning of the July 17 telephonic hearing, the examiner stated:
I contacted her multiple, multiple times to advise her that I understood that she was informing me of that but that this was an employer appeal so that she needed to call in and participate in the hearing because if she didn't, and if the employer did call in since it was their appeal we would go ahead and move forward. She did not return any of
my calls or my staff members [sic] calls as well.
The employer testified that, although her full-time manager job was still available, Fitzgerald requested a voluntary demotion to part-time sales associate because she did not want to work full-time any more. This change took effect on December 4, 2011. After hearing the employer's testimony, the Appeal Tribunal modified the Deputy's determination and held that Fitzgerald was disqualified for benefits on the ground that she left full-time work voluntarily without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). The Board affirmed the decision of the Appeal Tribunal, further finding that "good cause [for] failing to appear [at the telephonic hearing] or request an adjournment has not been presented[.]"
Fitzgerald raises the following points on appeal,
POINT I: CLAIMANT HAD GOOD [CAUSE] FOR MISSING HER APPEAL TRIBUNAL HEARING IN THAT SHE WAS DISABLED. DUE PROCESS REQUIRES THAT THE CASE BE REMANDED AND CLAIMANT BE GIVEN AN OPPORTUNITY TO PARTICIPATE IN A HEARING.
POINT II: CLAIMANT'S DISABILITY BENEFITS SHOULD NOT BE DENIED DUE TO THE UNEMPLOYMENT DISQUALIFICATION BECAUSE SHE DID NOT VOLUNTARILY QUIT OR LEAVE HER POSITION. RATHER THE EMPLOYER TERMINATED HER BY LETTER DATED MAY 31, 2012.
N.J.S.A. 43:21-5(a) disqualifies a claimant from receiving unemployment benefits if the employee "has left work voluntarily without good cause attributable to such work[.]"
For the first time on appeal, Fitzgerald argues that at the time of the telephonic hearing she "was recovering from surgery and under the influence of heavy narcotic medication." Fitzgerald's surgery for a broken arm and elbow took place on May 15, 2012. Fitzgerald did not raise this argument when she timely appealed to the Board, nor at any time prior to the Board's October 3, 2012 final decision. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[A]ppellate courts of New Jersey will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960))).
Without filing a motion to expand the record, Fitzgerald relies on an October 25, 2012 note from her doctor indicating that he performed surgery on her left humeris and elbow on May 15, 2012 and "because of her pain medication she was taking, she missed an interview with unemployment on 7/17/12." Because Fitzgerald wrote a cogent note to the examiner two weeks before the hearing, and the hearing did not require a physical appearance, we cannot conclude that Fitzgerald has presented us with good cause for not participating in the telephonic hearing, even if we overlook the lateness of this claim.
Additionally, Fitzgerald relies on a May 31, 2012 letter from Life Uniform Company (apparently the same company as HUC), submitted for the first time on appeal to this court, in which the company terminates Fitzgerald from her part-time employment due to her medical condition that renders her unable to work. This letter was written after the January 1, 2012 initial determination of eligibility that forms the basis for the appeal pending before us. Thus it is not relevant to this appeal.
It was Fitzgerald's burden to establish her entitlement to collect unemployment benefits, Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), a burden she failed to meet. We therefore conclude that the Board's decision was not arbitrary, capricious, or unreasonable and had adequate support in the record. Id. at 210-11.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION