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Heeney v. Board of Review

August 30, 2007

JAMES A. HEENEY, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND WITTE HEAVY LIFT TOWING DIVISION, INC. A/K/A DONJON MARINE CO., INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. BR-76,289.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges R.B. Coleman and Sapp-Peterson.

Claimant James A. Heeney appeals from an order of the Board of Review (Board), which affirmed the Appeal Tribunal's (Tribunal) decision denying his claim for unemployment compensation benefits because he was unavailable for work and was not actively seeking work within the meaning of N.J.S.A. 43:21-4(c)(1). We affirm.

Claimant was employed as a deck hand by Witte Heavy Lift Towing Division, Inc. (Witte) until involved in a work-related injury on January 3, 2004, in which he sustained a broken hip, back, and pelvis. He was released by his treating physician on January 21, 2005, to return to work, but with restrictions that effectively limited him to light duty with no bending, stooping or prolonged ambulation.

Claimant filed a claim for unemployment benefits effective January 23, 2005. He collected benefits totaling $6,539 for the weeks ending January 23, 2005, through April 23, 2005. During this time period, claimant was also examined by a neurologist, who recommended back surgery. Claimant underwent back surgery on May 2, 2005.

The Deputy Director of the Division of Unemployment and Disability Insurance (Division) determined that claimant was disqualified for benefits under N.J.S.A. 43:21-5(a) on the basis that he left work voluntarily without good cause attributable to work. At the same time, the Division Director determined that claimant was liable for a refund of the full amount of benefits he received between January and April 2005. The Tribunal affirmed the Deputy Director and Director's determinations, but the Board remanded the matter to the Tribunal for a new determination. The Board directed the Tribunal to consider additional testimony on the issue of whether there was work available at Witte to accommodate claimant's medical restrictions.

At the conclusion of the second hearing, the Tribunal determined that claimant was ineligible for the unemployment benefits he received because he was disabled and unable to work under N.J.S.A. 43:21-4(c) and still liable to refund the Division for benefits he had received. The Board remanded the matter to the Tribunal a second time and directed that a new hearing be conducted. The Board instructed the Tribunal to elicit additional testimony regarding claimant's fitness to work, in particular, consideration of medical evidence related to claimant's ability to perform light duty.

The third hearing was conducted on January 18, 2006. Claimant and Witte's representative testified. The examiner also considered reports from claimant's treating physician, Dr. Jonathan Gross; his neurologist, Dr. Bruce R. Rosenblum; and a report prepared, at the request of Dr. Gross, by Kinematic Consultants, Inc. (Kinematic), which performs motion and performance analyses for medicine, industry, and athletes.

Dr. Gross authored two reports. In his January 21, 2005 "Insurance Company Update/Quick Fax" report, he selected two choices under the "Work Status" category: (1) "Patient has reached maximum benefit of treatment" and "Return to work, Light Duty with the following restrictions[.]" In his narrative report dated March 4, 2005, Dr. Gross detailed his involvement with plaintiff as a treating physician from the date of the accident on January 3, 2004, through the date of claimant's final visit to him one year later. He opined that "[plaintiff] will no longer be able to return to full activity, is limited to approximately two blocks of walking and is permanently disabled."

The report prepared by Kinematic, dated January 5, 2005, concluded that claimant "demonstrates ability for Light-Medium category work (occasional lift/work at 35 lbs.) . . . administrative duties, light sweeping and mopping, utilization of machinery with push button/lever controls[.]"

In Dr. Rosenblum's neurological report dated February 1, 2005, he indicated that he discussed surgery with claimant because claimant failed to respond to conservative treatment. His report also noted that claimant was "out of work pending [back surgery]." He thereafter listed the weight restrictions, as well as other limitations.

Claimant testified that during this period, he registered his availability for work with his union, applied for work as a delivery person, inquired about a job at a computer store and also with a friend. He also registered for retraining, but ...


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