On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 133,611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and King.
On October 22, 2006 appellant Margaret A. Boyle, age 75, filed a claim for unemployment benefits. On November 20, 2006 a deputy to the Director, Division of Unemployment Insurance, ruled that Boyle was disqualified for benefits from October 8, 2006 as a result of her leaving work voluntarily on October 13, 2006 "because . . . [she was] dissatisfied with the type of work . . . [she was] doing." The deputy found that there was "no evidence that the work was unsuitable or in any way harmful." The deputy ruled that Boyle's "reason for leaving does not constitute good cause attributable to the work," and she was disqualified for benefits.
On November 22, 2006 Boyle appealed the deputy's determination to the appeal tribunal. A hearing was held on January 9, 2007 at which Boyle and a witness for her former employer, The TJX Companies, Inc. (TJX) appeared. On January 23, 2007 the appeal tribunal affirmed the deputy's determination.
The appeals examiner found that Boyle had worked as an associate for TJX from March 2003 through October 13, 2006. Her duties included lifting clothes and shoe boxes. She suffered from "arthritis in her hand and back" but never informed the employer of her malady. She requested that she be assigned lighter work, but none was available. Boyle's doctor did not advise her to leave work.
The appeals examiner found not credible that Boyle "left the job for emotional stress," as she claimed, because she made no attempt to resolve her problems with her manager and did not advise higher management of those problems or of any "medical limitations." Also, there was "insufficient evidence that Boyle left the job for physical stress" because the medical evidence submitted by her "does not support restrictions related to the job," and her doctor did not advise her to leave work.
On January 29, 2007 Boyle appealed the appeal tribunal's decision to the Board of Review. On March 27, 2007 the Board remanded this matter to the appeal tribunal for additional testimony from Boyle and TJX's assistant operations manager on the issue of "whether the claimant's medical condition and the conditions of the work environment constituted good cause attributable to the work for leaving."
On May 2, 2007 the same appeals examiner held a hearing at which Boyle and TJX's operations manager testified. On May 11, 2007 the appeals examiner again affirmed the deputy's denial of benefits. The appeals examiner found that Boyle suffered from arthritis before her employment by TJX and, due to her affliction, requested and was provided with assistance "with lifting clothes." Her job duties did not require that she "lift more than one article of clothing at a time."
The appeals examiner also found that during a store audit Boyle "was observed not counting each article of clothing as required." She was counseled about this infraction, following which she informed the employer that she wished "to discuss her concerns about the job." The employer made arrangements to meet with Boyle; however, she resigned before a meeting was held.
The appeals examiner also found that the medical evidence submitted by Boyle "states that she has incurred anxiety and stress due to job pressures" and "that lifting aggravates her condition." The examiner observed, however, that Boyle "was not advised by any physician to resign."
The appeals examiner concluded that Boyle's arthritis was caused by the aging process and that the normal "aging process made it impossible for the claimant to perform the job." It held that her leaving was not attributable to the work, however, because the employer accommodated her condition by providing her with "assistants for lifting," that "the employer's critique of . . . [her] job audit was within reason" and that she "resigned before the employer could address . . . [her] concerns." Thus, he concluded that she left voluntarily without good cause attributable to the work and was disqualified for benefits pursuant ...