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Combs v. Board of Review

Decided: January 21, 1994.

CAROL A. COMBS, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, RESPONDENT



On appeal from the Board of Review, Department of Labor.

Brody, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.

Stern

Claimant, Carol A. Combs, appeals from a determination of the Board of Review affirming the denial of unemployment benefits. The Deputy Director of the Division of Unemployment and Disability Insurance initially found that Combs "left [her] job because [she] felt that the work was adversely affecting [her] health," despite the fact "[t]here [was] no evidence to indicate that the work either caused or aggravated [her] medical condition." He thus concluded that Ms. Combs "quit [her] job voluntarily and without good cause attributable to the work" and was therefore disqualified from benefits. The Appeal Tribunal affirmed concluding that:

The claimant in this case left her last job because she perceived that the duties assigned her were hazardous to her health. However, in the absence of a doctor's written verification that the claimant's perception was correct and that, further, a doctor found it medically necessary that the claimant leave her job, she has not shown good cause, attributable to the work, for her resignation.

The Appeal Tribunal therefore affirmed the determination that she was disqualified for the receipt of unemployment benefits under N.J.S.A. 43:21-5(a). Finding that petitioner had a "full and impartial hearing and a complete opportunity to offer any and all evidence," the Board of Review denied a further hearing and affirmed on the basis of the Appeal Tribunal's decision. The issue before us principally relates to the burden a claimant must bear when she claims a disability affecting her ability to work, in circumstances involving no contest by the employer to the award of unemployment benefits.

I.

There is no factual dispute except as the facts relate to the impact of claimant's physical condition. Briefly, Ms. Combs worked for AT & T for twelve and one half years. She worked

from 1979 until 1989 in Phoenix, Arizona. Sometime in 1986 she injured her back while lifting a sixty to eighty pound reel of copper wire on the job. She apparently received treatment and associated therapy as a result of work related compensation. In 1989, her husband, also an employee of AT & T, was transferred to New Jersey. Ms. Combs received a personal leave to seek employment here within the Bell system. In May 1989, she found work at AT & T's Short Hills facility in the mail room.

Ms. Combs again injured her back in November 1990 while lifting a mail bag. She was put on work restriction and was prohibited by AT & T doctors from lifting more than 10 to 15 pounds. However, her supervisor refused to curtail her duties and so gave Combs a thirty-day personal leave in early 1991. Upon returning to work in February 1991, she obtained medical verification from a doctor to whom she had been referred indicating that she could do "no lifting over 10 pounds." The company's medical department instructed her supervisor to "continue restriction" with "no lifting over 15 lbs." and "no pushing or pulling." Thereafter her supervisor assigned her duties which did not require heavy lifting or physical work.

However, in November 1991 a new mail room supervisor, Inez Rogers, took over and informed Ms. Combs that all mail room staff had to perform all duties of the job including lifting mail bags and pushing mail carts. Combs complained that those duties aggravated her condition and caused her great pain. While she asserts that Dr. Comstock of the AT & T medical department acknowledged her pain, the doctor apparently told claimant he could do "nothing else" for her and that she "just [had] to continue doing . . . all aspects of the job" as assigned.

Combs declined to do more than she had been previously assigned, and the new supervisor advised her that "if she could not push a mail cart as required," she would consider Combs' behavior as a resignation. Combs asked if that meant she was being terminated and testified that Rodgers responded ...


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