Stauhs v. Board of Review, Division of Employment Sec., Dept. of Labor and Industry, No. A--1173

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: LEONARD
• Citation: 93 N.J.Super. 451,226 A.2d 182
• Parties: Joseph STAUHS, Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, Respondent.
• Docket Number: No. A--1173
• Decision Date: 23 January 1967

Page 451

93 N.J.Super. 451 226 A.2d 182 Joseph STAUHS, Appellant,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT
OF LABOR AND INDUSTRY, State of New Jersey, Respondent. No. A--1173. Superior Court of New Jersey, Appellate Division. Argued Dec. 5, 1966.
Decided Jan. 23, 1967.

Page 453

[226 A.2d 183] Bernard P. Hughes, Newark, for appellant.

Edward A. Kaplan, Jersey City, for respondent.

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

LEONARD, J.A.D.

Claimant-appellant appeals from a final determination of the Board of Review, Division of Employment Security, Department of Labor and Industry, affirming a decision of the Appeal Tribunal that the claimant was disqualified from receiving unemployment benefits under N.J.S.A. 43:21--5(a) for leaving work '* * * voluntarily without good cause attributable to such work * * *.'

Claimant, aged 62, was a federal employee of the United States Post Office in Newark for approximately 40 years until December 30, 1965. He was a special delivery dispatcher and sorter. His work required that he walk up and down 35 steps

Page 454

approximately every 20 minutes to pick up the special delivery mail, take it down, cancel it, and distribute it to messengers on their runs. He also was required to answer some 60 to 85 telephone calls a day.

On June 27, 1965 claimant underwent surgery for the removal of a tumor of the larynx. Evidently portions of his vocal cords were also removed in that operation. About five weeks after the operations he returned to work and attempted to perform his regular duties. He testified that following the operation his doctor advised him that the use of his voice in his work and the climbing of the stairs would be detrimental to his health. The physician asserted that the physical exertion required by claimant's employment prevented proper healing and he recommended that he seek other work.

During the middle of September 1965 claimant asked his supervisor for a transfer to other duties which would not involve the use of his voice or the climbing of stairs. He was told that no other assignment was available to him at the post office, and he [226 A.2d 184] remained at his regular position at the request of his supervisor until the end of the year in order to assist in the busy Christmas season. On December 30, 1965 he retired on a pension of $370 per month, stating that he did so 'on the advice of my physician who recommends I seek lighter employment because of my physical condition * * *.' On January 12, 1966 claimant filed a claim for unemployment benefits in which he indicated that he was not working because 'he retired on advice of doctor.'

It is conceded that even though claimant was a federal employee his right to compensation must be determined under the New Jersey Unemployment Compensation Law. We therefore first review the pertinent statutory provision, N.J.S.A. 43:21--5.

The original act, L. 1936, c. 270, § 5, provided that

'An individual shall be disqualified for benefits: (a) For the week in which he has left work voluntarily without good cause, and for each week thereafter until he has earned in employment * * * at least four times his weekly benefit rate * * *.'

Page 455

This act was amended in 1961 and now provides:

'An individual shall be disqualified for benefits: (a) For the week in which he has left work voluntarily without good cause Attributable to such work, and for each week thereafter until he has earned in employment * * * at least 4 times his weekly benefit rate * * *.' (Emphasis added)

Appellant does not contend that either his illness or the operation performed upon him were caused by his work. Rather, he asserts that following the operation the daily chores required of him in this work were detrimental to his existing physical condition, and since his physician advised him to leave his position, he did so with 'good cause attributable to such work.'

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