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Keim v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2008

ROBERTA B. KEIM, APPELLANT,
v.
BOARD OF REVIEW, AND BACK CARE PROFESSIONALS, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 127,034.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 26, 2008

Before Judges Winkelstein and LeWinn.

Appellant, Roberta Keim, was employed by Back Care Professionals from August 2005 to January 3, 2006, as a physician's assistant. In September 2005, appellant's son was in a fatal automobile accident. Appellant took no time off and continued working until January 3, 2006. On that date, one of the physicians, Dr. Cook, spoke to her about taking a leave of absence because he felt she needed the time to grieve the loss of her son.

Appellant did not want to take any time off, but she "felt that [she] had no choice." Dr. Cook told her to give herself some time, "however long it takes" and then to "get back in touch with us[.]"

While out on leave, appellant contacted the office on "a couple of occasions"; however, the discussions related to her receipt of her paycheck and not about her return to work. Sometime in March or April 2006, appellant encountered one of her former patients, who stated that she had been advised that appellant had quit her job. Following this conversation, appellant never contacted her employer to inquire into her employment status or to advise the employer that she was ready to return to work. Appellant's explanation for her inaction was that she had concluded that her employer did not want her to return to work.

Appellant filed a claim for unemployment compensation benefits; she received a decision by a deputy claims examiner finding her disqualified for benefits from January 1, 2006. Appellant then filed an appeal of that determination with the Appeal Tribunal. Following a hearing, the Appeal Tribunal rendered a decision finding appellant disqualified for benefits from January 1, 2006, pursuant to N.J.S.A. 43:21-5(a) which provides, in pertinent part, that an "individual [who] has left work voluntarily without good cause attributable to such work" shall be "disqualified for [unemployment compensation] benefits[.]"

The Board of Review affirmed the decision of the Appeal Tribunal. Appellant now appeals to this court, seeking to reverse the denial of unemployment benefits.

Having reviewed the entire record, we affirm the decision of the Board of Review. Our scope of review of the decisions of administrative agencies is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Appellate courts 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. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J. 384, 391 (1983)). We are not at liberty to vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In determining whether an agency's decision is supported by substantial and credible evidence, we are obligated to accord deference to that agency's factfinding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Here, appellant took a leave of absence from her work. Although she may have initially been unwilling to take such a leave, the fact remains that, once on leave, she made no effort to notify her employer that she was ready to return to work. Even when one of her former patients stated that she heard that appellant had quit her job, appellant did not contact her employer about her work status because, as she testified, she assumed that her employer did not want her to return to work.

Appellant contends that she did not receive a written leave of absence policy and, therefore, was not aware of the terms and conditions of such a policy. N.J.A.C. 12:17-9.11(b) states that an employer's leave of absence policy may be a "written policy, union contract or business custom[.]" Even assuming that Back Care Professionals, a small business, did not have a written leave policy, it remained appellant's responsibility to inquire about her return to work. "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983).

Appellant was not free to sit back and merely wait for the employer to contact her regarding her availability.

An employee who has not returned to work following an approved leave of absence . . . and who without good cause has not notified the employer of the reasons for failing to return to work within five consecutive work days shall be considered to have abandoned his or her employment. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work. [N.J.A.C. 12:17-9.11(b).]

Appellant's own testimony supported the Appeal Tribunal's conclusion that she abandoned her job because she made no effort retain her employment.

Given our limited scope of review and our deference to the agency's factfinding, we conclude that the record in this case contains substantial credible evidence supporting the final determination of the Board of Review.

Affirmed.

20080530

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