Ardan v. Bd. of Review

• Decision Date: 25 April 2016
• Citation: 134 A.3d 1018,444 N.J.Super. 576
• Parties: Margo S. ARDAN, Appellant, v. BOARD OF REVIEW, Lourdes Medical Center of Burlington County, Inc., and Alliance Healthcare, Respondents.
• Court: New Jersey Superior Court — Appellate Division

444 N.J.Super. 576

134 A.3d 1018

Margo S. ARDAN, Appellant,

v.BOARD OF REVIEW, Lourdes Medical Center of Burlington County, Inc., and Alliance Healthcare, Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 7, 2016.

Decided April 25, 2016.

Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Mr. Talbot, on the briefs).

Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).

Cindy Perr, Associate General Counsel, argued the cause for respondent Lourdes Medical Center of Burlington County, Inc. (Jennifer L. Schwartz, Vice President Legal Affairs & General Counsel, attorney, joins in the brief of respondent Board of Review).

Before Judges SIMONELLI, CARROLL and SUMNERS.

The opinion of the court was delivered by

SIMONELLI

, J.A.D.

Appellant Margo S. Ardan appeals from the December 13, 2013 final decision of respondent Board of Review (Board), which affirmed the September 26, 2013 decision of the Appeal Tribunal that Ardan was disqualified from receiving benefits pursuant to N.J.S.A. 43:21–5(a)

because she left her employment at respondent Lourdes Medical Center of Burlington County, Inc. (Lourdes) without good cause attributable to the work. On appeal, Ardan contends that she had medical good cause to leave her employment with Lourdes; an amendment to N.J.S.A. 43:21–5(a)

, which should be applied retroactively, permitted her to leave her employment for equal or better employment elsewhere; and the Board failed to make adequate factual findings. We reject these contentions, and affirm.

We derive the following facts from the record. Ardan was employed by Lourdes as a registered nurse from September 7, 2010, until she resigned on November 7, 2012. Before resigning, Ardan found a "desk job" at Alliance Healthcare (Alliance) that was less physically demanding and provided better work hours and comparable pay. In her resignation letter to Lourdes, Ardan said she was leaving "to seek other opportunity." She never mentioned having any medical condition that affected her ability to work, nor did she request an accommodation.

On November 12, 2012, Ardan began working for Alliance as a healthcare communicator. She was separated from that job after seven weeks because she could not pass a certification test. She filed a claim for unemployment benefits on December 23, 2012.

On January 28, 2013, the Deputy Director of the Division of Unemployment and Disability Insurance determined that Ardan was disqualified for benefits as of November 4, 2012, because she left work at Lourdes voluntarily without good cause attributable to the work. The Deputy Director also determined that the seven weeks Ardan worked and wages she earned at Alliance were insufficient to remove the disqualification.

Ardan appealed to the Appeal Tribunal. At a hearing, Ardan never mentioned any medical condition that affected her ability to work at Lourdes. Rather, she testified that she left that job because she was forty-nine years old, was running around for twelve hour shifts, and the job "just got too difficult." In a February 25, 2013 decision, the Appeal Tribunal determined that Ardan left work at Lourdes for employment with Alliance and was disqualified for benefits under N.J.S.A. 43:21–5(a)

as of November 4, 2012, because she left work voluntarily without good cause attributable to the work.

Ardan appealed to the Board, claiming for the first time that she left Lourdes due to a non-work connected medical condition that was aggravated by her working conditions. She submitted medical documentation supporting her claim, including a report from her treating chiropractor that was dated after the Appeal Tribunal's February 25, 2013 decision. She also submitted medical records, which showed she had significant problems with her neck, lower back and left knee that pre-dated her employment with Lourdes. Ardan also claimed for the first time that there was no other suitable work available at Lourdes.

In an August 16, 2013 decision, the Board remanded the matter to the Appeal Tribunal for a new hearing and decision on all issues. At the hearing, Ardan admitted that she never advised Lourdes of her medical condition or provided Lourdes with any medical documentation. She also admitted that she never requested an accommodation or leave of absence, but testified, with no documentary support, that there was no other suitable work available at Lourdes.

In a September 26, 2013 decision, the Appeal Tribunal found that Ardan: (1) left work at Lourdes to accept employment with another employer; (2) left work at Lourdes because of a physical condition personal to her that was not work-connected and made it necessary for her to leave her job due to an inability to perform the job; (3) never informed Lourdes she was leaving for medical reasons; (4) never requested a leave of absence, accommodation, or change in duties or schedule; and (5) never afforded Lourdes an opportunity to make changes to her schedule and/or duties to accommodate her medical condition. Accordingly, the Appeal Tribunal concluded that Ardan was disqualified for benefits under N.J.S.A. 43:21–5(a)

and N.J.A.C. 12:17–9.1(e)(9) as of November 4, 2012, because she left work at Lourdes voluntarily without good cause attributable to the work.

Ardan appealed to the Board. The Board reviewed the record and, in a December 13, 2013 final decision, affirmed for the reasons expressed by the Appeal Tribunal. This appeal followed.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210, 704 A. 2d 547 (1997)

. "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79, 490 A. 2d 352 (App.Div.1985) ) (alteration omitted). "If the Board's factual findings are supported ‘by sufficient credible evidence, [we] are obliged to accept them.’ " Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459, 453 A. 2d 170 (1982) ). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J.Super. 346, 348, 690 A. 2d 1125 (App.Div.1997). "Unless ... the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210, 704 A. 2d 547.

Moreover, we "should give considerable weight to a state agency's interpretation of a statutory scheme that the legislature has entrusted to the agency to administer." In re Election Law Enf't Comm'n Advisory Op. No. 01–2008, 201 N.J. 254, 262, 989 A. 2d 1254 (2010)

. "We will defer to an agency's interpretation of both a statute and implementing regulation, within the sphere of the agency's authority, unless the interpretation is ‘plainly unreasonable.’ " Ibid. However, we are "not bound by an agency's interpretation of a statute or its determination of a strictly legal issue[.]" Lavezzi v. State, 219 N.J. 163, 172, 97 A. 3d 681 (2014) (alteration omitted) (citation omitted). "Thus, to the extent [the agency's] determination constitutes a legal conclusion, we review it de novo." Ibid.

An individual is disqualified for unemployment benefits:

For 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[.]

[N.J.S.A. 43:21–5(a)

.]

An employee who has left work voluntarily bears the burden of proving that he or she "did so with good cause attributable to work." Brady, supra, 152 N.J. at 218, 704 A. 2d 547

(citation omitted); N.J.A.C. 12:17–9.1(c). "While the statute does not define ‘good cause,’ our courts have construed the statute to mean ‘cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.’ " Domenico v. Bd. of Review, 192 N.J.Super. 284, 287, 469 A. 2d 961 (App.Div.1983) (quoting Condo v. Bd. of Review, 158 N.J.Super. 172, 174, 385 A. 2d 920 (App.Div.1978) ). N.J.A.C. 12:17–9.1(b) defines "good cause attributable to such work" as "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."

An employee who leaves work for good, but personal, reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213, 704 A. 2d 547

. Thus, a claimant who leaves work for good, but personal, reasons is subject to disqualification under N.J.S.A. 43:21–5(a). Morgan v. Bd. of Review, 77 N.J.Super. 209, 214, 185 A. 2d 870 (App.Div.1962). There is a limited exception to this general rule under N.J.A.C. 12:17–9.3(b), which provides as follows, in pertinent part:

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.

An employee who is unable to work because of illness and "makes an attempt to protect his or her employment" is not deemed to have voluntarily quit without good cause attributable to the work. Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 376, 554 A. 2d 1337 (1989)

(citing Self, supra, 91 N.J. at 457, 453 A. 2d 170 ; DeLorenzo v. Bd. of Review, 54 N.J. 361, 363, 255 A. 2d 248 (1969) ).

Although Ardan's medical evidence showed she was unable to work at Lourdes due to a non-work...