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Gursky v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 28, 2007

JEANNE L. GURSKY, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND DR. ROBERT HOLTZIN, RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, 116,332.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 21, 2007

Before Judges Lisa and Holston, Jr.

Appellant, Jeanne L. Gursky, appeals from a final decision of the Board of Review (Board), which affirmed a determination by the Appeal Tribunal that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. Appellant argues that the Board acted arbitrarily, capriciously and unreasonably, that its determination was not supported by substantial credible evidence in the record as a whole, and that the Board did not follow controlling legal authority in reaching its decision. We reject these arguments and affirm.

Appellant was employed in Dr. Holtzin's medical office from March 2000 through May 12, 2006. She was the office manager. This was a relatively small office with less than ten employees. Appellant enjoyed her work and had no medical or emotional problems, but that situation changed beginning in January 2006, when Holtzin's wife, Carolyn, began participating in the daily office management activities.

According to appellant, Carolyn began implementing significant changes in office procedures, including changes in the computer and telephone systems, as well as job responsibilities and activities of the various staff members. These changes were made without consultation with appellant and without her input. Appellant experienced stress and felt that she was unable to perform her job effectively and that the office was becoming chaotic. She discussed the situation with Holtzin, but to no avail. Indeed, at one point, Holtzin explained that Carolyn is his wife and he would not intercede. Appellant understood.

In addition to being appellant's employer, Holtzin was also her physician. Because of her stress, he prescribed Xanax for her. By April 2006, in one of their discussions, Holtzin suggested that appellant take a medical leave of absence, but she declined because she felt the work conditions would be the same when she returned and a leave of absence would not solve the problem. In his testimony at the Appeal Tribunal hearing, Holtzin stated that he did not want to lose appellant, who he considered a friend and a valued employee, that he knew she was feeling stress, and "there were other options upon you know assistance with the job. So other duties were reassignment or more help for her." And, he reiterated that he offered her a leave of absence. In her testimony, appellant stated she did not request light duty, reduced hours or other adjustments in an effort to accommodate her medical condition. She felt that the only thing that would be helpful for stress would be alleviation of the circumstance where there were "too many people making the decision[s] with out [sic] consulting the office manager first." She felt that any adjustments would not change the circumstances because "a lot of the doctors were uh things were being done uh Dr. Holtzin's wife. And the confusion and the pressure and the chaos[.]"

In mid-April 2006, appellant began seeing Dr. Barbara J. Clark, a psychologist. She informed Holtzin of this, and he acknowledged his awareness of it, although he never received any report from Clark.

Plaintiff submitted her letter of resignation on May 8, 2006. In it, she stated: "Because of the work related stress I feel, I am unable to perform my duties effectively as your office manager. My physical as well as mental health is at risk."

Appellant applied for unemployment benefits. She submitted a May 10, 2006 report from Clark, which stated in its entirety:

Ms. Gursky is suffering from the physical and emotional symptoms of a generalized anxiety disorder with panic attacks (DSM-IV-TR 300.01) brought about in large part by ongoing stresses suffered in her current employment.

Therefore, she and I have agreed that it is in her best interest to seek a position elsewhere; and, she is willing and able to do so.

Additionally, I have referred her for medical management for this condition and recommend regular weekly office visits for psychotherapy with the goal of reducing the symptoms she is experiencing.

On June 9, 2006, the claims examiner issued a notice of determination denying benefits because appellant left her job voluntarily because she was dissatisfied with her working conditions and did not exhaust all opportunities to resolve the problems with her employer, as a result of which her reason for leaving was not good cause attributable to the work. On June 15, 2006, the claims examiner issued a re-determination notice "based on new information." The examiner stated: "You voluntarily left your job because the work was adversely affecting your health. Medical evidence indicates that your health problem was aggravated or caused by the work. You demonstrated good cause attributable to the work."

According to appellant, she submitted Clark's May 10, 2006 report with her initial application. Assuming that to be the case, we can only surmise that the claims examiner overlooked it when issuing the initial determination, but then saw it and, in reliance on it, issued the re-determination.

Holtzin appealed the decision to the Appeals Tribunal. A telephone hearing was conducted on July 28, 2006, at which appellant and Holtzin testified.

On August 9, 2006, the appeals examiner issued his decision. He found: "The claimant's leaving of the work based on her medical condition due to the employer's decision to change the entire office operation system without her input is not considered a cause sufficient enough to justify one leaving the ranks of the employed to join the ranks of the unemployed." On September 18, 2006, the Board adopted the findings and conclusions of the Appeal Tribunal and issued the final administrative decision denying appellant benefits. This appeal followed.

An employee who leaves work voluntarily without good cause attributable to the work is disqualified from benefits. N.J.S.A. 43:21-5(a).

An employee who leaves work voluntarily has the burden of proving she did so for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962).*fn1 In Domenico v. Board of Review, 192 N.J. Super. 284 (App. Div. 1983), we explained that "[W]hile the statute does not define 'good cause,' [we] 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.'"

Id. at 287 (citing Condo v. Review Bd., 158 N.J. Super. 172, 174 (App. Div. 1978) (quoting Goebelbecker v. State, 53 N.J. Super. 53, 57 (App. Div. 1958))). "Good cause" is defined in the regulations 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." N.J.A.C. 12:17-9.1(b). Ultimately, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288.

Where the asserted good cause is a medical condition attributable to (i.e. caused by) the work, it is incumbent upon the claimant to establish by competent medical evidence that leaving the work was medically necessary due to that condition. Brown v. Bd. of Review, 117 N.J. Super. 399, 402-04 (App. Div. 1971). An equivocal medical statement will not suffice. Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971).

Appellant contends that she presented uncontroverted competent medical evidence to carry her burden. In addition to Clark's May 10, 2006 report, which we have quoted at length, by the time of the Appeal Tribunal hearing, appellant produced another report from Clark, dated July 3, 2006, which stated in its entirety:

Ms. Gursky came to the Clark Institute in April 2006, at which time she reported that her work environment had become too stressful for her due to changes that had been made in her work schedule and in operating systems that were vital to her job without consulting her--even though she had been in the position of Office Manager since the office was established some years ago.

She reported that she was not experiencing problems with her primary support group or her social environment at this time.

She stated she had been experiencing severe panic attacks with chest pain, feeling lightheaded and faint, great difficulty sleeping, and difficulty concentrating.

Ms. Gursky's diagnosis was that she was suffering from the physical and emotional symptoms of a generalized anxiety disorder with panic attacks (DSM-IV-TR 300.01) brought about by an unduly stressful work environment.

Ms. Gursky agreed to a treatment plan of weekly office visits for psychotherapy with the goal of reducing the symptoms she was experiencing.

The Appeal Tribunal and Board found this evidence insufficient to establish medical necessity. For purposes of our review of that determination, we set forth our standard of review.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210-11. The scope of review of an administrative decision is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))).

Applying this highly deferential standard, we find no occasion to interfere with the Board's finding. Mere dissatisfaction with working conditions is insufficient to constitute good cause for leaving the work. Stressful conditions are not uncommon in the work place, nor are changes in working conditions effected through management prerogative.

In our view, the Board's determination that Clark's reports failed to establish medical necessity is supported by substantial credible evidence in the record as a whole. The record establishes that, without a doubt, the stress appellant complains of began when Carolyn entered the scene several months before appellant resigned. Appellant refused to consider making any adjustments, accepting the changes or making any efforts to ameliorate the effect of the changes on her. Accepting Clark's reports, appellant experienced a generalized anxiety disorder with panic attacks, caused by the stress occasioned by the changes in her work conditions. Clark does not suggest that the condition she diagnosed was permanent. Indeed, she recommended a plan of weekly psychotherapy sessions to reduce appellant's symptoms. She does not mention in her July 3, 2006 report whether appellant had been undergoing the recommended weekly sessions since they were recommended on or before May 10, 2006, and if so, with what results. Nowhere in her reports does Clark say that appellant's diagnosed condition made it necessary for her to leave her work. The most Clark said on the subject was that she agreed with appellant that working elsewhere would be "in her best interest." Clark's statements are extremely equivocal and do not establish medical necessity.

We are therefore satisfied that the Board's final decision is supported by sufficient evidence in the record as a whole and is not arbitrary, capricious or unreasonable. Accordingly, the Board's final decision of September 18, 2006 is affirmed.


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