Ardan v. Bd. of Review

Decision Date01 February 2018
Docket NumberA–35 September Term 2016,077771
Citation177 A.3d 768,231 N.J. 589
Parties Margo S. ARDAN, Plaintiff–Appellant, v. BOARD OF REVIEW, Lourdes Medical Center of Burlington County, Inc., and Alliance Healthcare, Defendants–Respondents.
CourtNew Jersey Supreme Court

Sarah S. Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorney; Sarah S. Hymowitz, Keith Talbot, Anisa Rahim, and Melville D. Miller, on the briefs).

Christopher J. Hamner, 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, and Robert M. Strang, Deputy Attorney General, on the brief).

Cindy M. Perr, Associate General Counsel, argued the cause for respondent Lourdes Medical Center of Burlington County, Inc. (Lourdes Health System, attorney; Cindy M. Perr, on the brief.)

JUSTICE PATTERSON delivered the opinion of the Court.

New Jersey's Unemployment Compensation Law provides that a person who leaves work "voluntarily without good cause attributable to such work" is ineligible for unemployment benefits until she is "reemployed and works eight weeks in employment" in a new position. N.J.S.A. 43:21–5(a). A regulation prescribes an exception to that rule. It provides that if the claimant left a previous job "due to a physical and/or mental condition or state of health" that "does not have a work-connected origin but is aggravated by working conditions," she is not disqualified from receiving benefits, "provided there was no other suitable work available which the [claimant] could have performed within the limits of the disability." N.J.A.C. 12:17–9.3(b).

Applying that statute and regulation, we must determine whether the Appellate Division properly denied plaintiff Margo S. Ardan's application for unemployment benefits. We disagree with the Appellate Division's holding that, in all cases, a claimant must prove that she notified her previous employer of her medical condition and sought an accommodation in order to establish the unavailability of "other suitable work" for purposes of N.J.A.C. 12:17–9.3(b). No notice-and-inquiry requirement appears in the regulation as currently drafted; such a mandate may be imposed only by rulemaking pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B–1 to –31.

We concur with the Appellate Division panel, however, that in the circumstances of this case, Ardan did not meet her burden to prove that she is within N.J.A.C. 12:17–9.3(b)'s exception to the disqualification rule of N.J.S.A. 43:21–5(a). We also agree with the panel's conclusion that although Ardan would be eligible for unemployment benefits pursuant to an amendment to N.J.S.A. 43:21–5(a) enacted three years after she filed her application, that amendment does not apply retroactively to her case. See L. 2015, c. 41 (amending N.J.S.A. 43:21–5(a) ).

We therefore affirm as modified the Appellate Division's judgment affirming the denial of Ardan's application for unemployment benefits.


We derive our summary of the facts from the record presented to the Department of Labor and Workforce Development Appeal Tribunal and the Board of Review.

On September 7, 2010, Ardan was employed as a registered nurse at Lourdes Medical Center of Burlington County, Inc. (Medical Center). Although she was hired as a part-time employee, Ardan typically worked thirty-six hours per week. At the conclusion of Ardan's employment, the Medical Center paid her $29.76 per hour. As part of her patient-care responsibilities, Ardan was required to walk substantial distances, as well as to bend, lift, shift, and transfer patients.

According to her testimony and medical records, Ardan suffered from chronic neck, lower-back, and left-knee pain for many years before she began working at the Medical Center. Her treatment records for the period in which she was employed at the Medical Center indicate that her condition was permanent and that her pain made it difficult for her to do her job. Ardan did not disclose her orthopedic condition to her employer during her tenure at the Medical Center and did not request less strenuous duties.

In 2012, Alliance Healthcare (Alliance) hired Ardan as a healthcare communicator. Ardan characterized the Alliance job as "exactly what [she] had been looking for"—a nursing "desk job" that would "reduce the physical impact on [her] body" but did not entail a substantial reduction in her hourly wages. Ardan resigned from the Medical Center by letter dated November 7, 2012. In her resignation letter, Ardan stated that she was leaving "to seek another opportunity." She did not mention any medical condition as a factor in her departure.

Ardan began work for Alliance on November 12, 2012. Seven weeks later, on December 27, 2012, Alliance terminated her employment. Ardan attributed her termination to her failure to pass certification examinations that were required for her position.

On December 23, 2012, Ardan applied for unemployment compensation. The Deputy Director of the Division of Unemployment and Disability Insurance disqualified Ardan from receiving benefits because her "reason for leaving was personal"; her reason did "not constitute good cause attributable to the work"; and although she had obtained subsequent employment, Ardan had "not earned at least ten times [her] weekly benefit rate in at least eight weeks of employment as required by law."

Ardan appealed to the Appeal Tribunal. Appearing pro se at the hearing before the Tribunal, Ardan did not disclose that she had resigned from the Medical Center because her work had aggravated her preexisting orthopedic condition. Instead, she testified generally that the physical demands of the job were "way too much." Ardan confirmed that she advised the Medical Center only that she was leaving for another opportunity, and conceded that she "didn't talk to anybody" representing her employer about her departure. The Appeal Tribunal affirmed the Deputy Director's ruling disqualifying Ardan from unemployment benefits under N.J.S.A. 43:21–5(a).

Ardan retained counsel and appealed to the Board of Review. For the first time, Ardan relied on N.J.A.C. 12:17–9.3(b)'s medical exception, and presented evidence that her orthopedic condition prompted her departure from the Medical Center.1 She explained to the Board of Review that she had not detailed her medical condition to the Appeal Tribunal because she had considered "where I choose to work and why I choose to leave a job" to be a private matter.

The Board remanded the case to the Appeal Tribunal for a new hearing and decision based on the medical evidence that Ardan submitted. At the hearing on remand, Ardan testified that she did not request that the Medical Center explore an alternative position for her because "it was not an option; it was not available to request accommodations or to ask for another position." She stated that the Medical Center assigned nurses to "light duty" but only on a temporary basis; that she was compelled to work as a registered nurse as a condition of a scholarship that the Medical Center's nursing school had awarded her; that she lacked the educational qualifications for "any kind of management or administrative" position; and that the only available positions would be "lower positions like becoming a Nursing Assistant which also has ... the same physical requirements as [the job of a registered nurse]." As her testimony made clear, Ardan arrived at those conclusions on her own, without communicating with her employer regarding her medical condition.

Following the hearing on remand, the Appeal Tribunal again determined that Ardan had left her position with the Medical Center voluntarily without good cause attributable to the work, and disqualified her from unemployment benefits pursuant to N.J.S.A. 43:21–5(a). Ardan appealed to the Board of Review. The Board of Review affirmed the Appeal Tribunal's denial of benefits, and Ardan again appealed.

An Appellate Division panel affirmed the determination of the Board of Review. Ardan v. Bd. of Review, 444 N.J. Super. 576, 590, 134 A.3d 1018 (App. Div. 2016). The panel concluded that the Board of Review had properly construed N.J.A.C. 12:17–9.3(b) to require 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." Id. at 586, 134 A.3d 1018. The panel noted that although the medical evidence established that Ardan was unable to work at the Medical Center "due to a non-work connected medical condition that was aggravated by her working conditions, [Ardan] made no attempt whatsoever to protect her employment." Id. at 585–86, 134 A.3d 1018.

The panel concluded that Ardan was disqualified for benefits not only under N.J.S.A. 43:21–5(a), but pursuant to a regulation that deems an employee "who leaves work [t]o accept other work’ ... to have left work voluntarily without good cause attributable to the work." Id. at 586, 134 A.3d 1018 (quoting N.J.A.C. 12:17–9.1(e)(9) ). The panel rejected Ardan's argument that the 2015 amendment to N.J.S.A. 43:21–5(a), which would have allowed her to receive benefits, should apply retroactively to her. Id. at 586–90, 134 A.3d 1018.

We granted certification. 229 N.J. 135, 160 A.3d 693 (2017).


Ardan argues that her case is governed by N.J.A.C. 12:17–9.3(b) because she left her job at the Medical Center due to a medical condition that was not work-related and there was no suitable work available for her at that facility. She contests the Appellate Division's holding that an employee must prove that she advised the former employer of the medical condition and formally requested an accommodation in order to avoid disqualification from benefits under N.J.S.A. 43:21–5(a). Ardan contends that no such requirement is...

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