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Mullarney v. Board of Review

August 01, 2001

THOMAS MULLARNEY, PLAINTIFF-APPELLANT
v.
BOARD OF REVIEW DEFENDANT-RESPONDENT



The opinion of the court was delivered by: Steinberg, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2001

Before Judges Stern and Steinberg.

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

Claimant, Thomas Mullarney, appeals from a determination of the Board of Review reversing a decision of the Appeal Tribunal that had, in turn, reversed a determination of the Deputy for the Director of the Division of Unemployment Insurance. The effect of the decision of the Board of Review was that Mullarney was ineligible for unemployment compensation benefits because he had left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5. In addition, he was required to refund $10,140 in benefits previously paid.

Mullarney was employed as a case manager by Robert Wood Johnson University Hospital in Hamilton Township. That position required a nursing license, which Mullarney possessed. In early 1998, he was suffering from a major depression. On March 26, 1998, Mullarney took a discarded medication patch from a trash can. The patch contained fentanyl, which he knew to be a powerful narcotic. He took the patch home, extracted the narcotic, mixed it with water and injected himself with the resultant solution. He claimed that it was his purpose to commit suicide. Mullarney lost consciousness. He awoke to find himself surrounded by police and emergency personnel. He was charged with possession of a controlled dangerous substance, and incarcerated in the Middlesex County Jail.*fn1 After the charges were resolved, Mullarney underwent psychiatric treatment for major depression at Hampton Hospital. During his incarceration and subsequent hospitalization, Mullarney remained in contact with his employer, advising that he would be out of work due to his illness.

Mullarney applied for, and received, state temporary disability benefits until September 9, 1998. The State Board of Nursing (the Board) began an investigation as a result of the attempt to commit suicide by overdosing on a narcotic. The Board requested Mullarney to voluntarily relinquish his license while the investigation was pending. He claimed that the Board advised him that if he did not surrender his license voluntarily, the Board would compel him to do so. Consequently, during the first week of May, 1998, shortly after his release from the hospital, Mullarney mailed his license to the Board. Shortly thereafter, he received a letter from the hospital, dated April 30, 1998, stating that he would be terminated from his employment, because he no longer qualified for the position since he had voluntarily relinquished his license. On July 2, 1998, the Board suspended his license for two years, effective March 28, 1998.

When Mullarney's temporary disability benefits ended, he thought he had recovered to the point where he could resume working. Indeed, he said his physician advised him that it was safe to do so. Accordingly, unable to find employment, Mullarney applied for unemployment compensation benefits on September 20, 1998, and collected benefits for the weeks ending September 26, 1998, through March 20, 1999.

The Deputy Director determined that Mullarney was disqualified from unemployment benefits effective March 1998 because he "left work voluntarily." The basis of that determination was the fact that his employment required a license as a prerequisite of employment, and that his "[e]mployment ended when [he] lost this license for committing a voluntary act."

The Deputy Director further determined that Mullarney was aware that his actions could jeopardize his license, and, consequently, his separation was considered to be a voluntary quit without good cause attributable to the work, disqualifying him from benefits. N.J.S.A. 43:21-5. Mullarney appealed to the Appeal Tribunal, which reversed, concluding that Mullarney's act of attempting to commit suicide, which resulted from his diagnosed illness of major depression, did not constitute a "voluntary foolish act" barring him from receiving unemployment benefits. A claims supervisor appealed that decision to the Board of Review, which reversed the Appeal Tribunal concluding that Mullarney had taken the drug home to inject it, rather than spontaneously doing so at work, affording him "ample time to reflect on his actions and consider their consequences." The Board further concluded that "[e]ven if it argued that his depressive state clouded his judgment, we are not persuaded that it compelled him to illegally obtain a controlled dangerous substance from his employer, which jeopardized his license and his job." Finally, the Board concluded that Mullarney's voluntary actions resulted in the loss of his license, which was a prerequisite for his employment. The Board determined that not only was Mullarney ineligible for benefits, but was also responsible to refund $10,140 in benefits he received for the weeks ending September 26, 1998 through March 20, 1999.

On this appeal, Mullarney argues, as follows: (1) the Board erred in concluding that Yardville Supply Co. v. Board of Review, 114 N.J. 371 (1989) is controlling; (2) the Board erred in holding Mullarney's actions to be voluntary based upon the time delay between taking the drug and attempting suicide, and (3) the Board erred in concluding that Mullarney was responsible for reimbursement.

Our scope of review of the decisions of an administrative agency is quite limited. If the Board's factual determinations are supported by sufficient credible evidence, we must accept them. Brady v. Board of Review, 152 N.J. 197, 210 (1997). We may not substitute our judgment for that of the agency, even though we may have reached a different result. Ibid. In addition, we may not disturb the agency's decision unless we conclude that it was arbitrary, capricious, or unreasonable. Ibid. Thus, our scope of review of an agency decision is restricted to the following four inquiries:

(1) Whether the agency's decision offends the State or Federal Constitution;

(2) Whether the agency's action violates express or implied ...


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