October 29, 2009
MARILEA A. DIFULVIO, APPELLANT,
BOARD OF REVIEW AND KATARZYNA FRANKFORT, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 198,103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Grall and Messano.
Marilea A. DiFulvio, formerly an employee of Katarzyna Frankfort, appeals from an order of the Board of Review of the Department of Labor. The Board concluded that DiFulvio left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), and affirmed the Appeal Tribunal's denial of her claim for benefits under the unemployment compensation law, N.J.S.A. 43:21-1 to -71.
On DiFulvio's initial challenge to the denial of her application for unemployment benefits, DiFulvio and Frankfort gave testimony, in person, before an Appeals Examiner. Their accounts of the pertinent facts were consistent.
Frankfort owns the Jack and Jill Salon and employed DiFulvio as a hairdresser from February 12, 2008 through July 3, 2008. Frankfort's clients are primarily children. Although Frankfort realized that DiFulvio was exhausted and nervous and knew she was taking medication because she was anxious, Frankfort believed that DiFulvio's anxiety stemmed from her situation in life and concern about her ability to perform because she was having difficulty finding a trusted caregiver for her three young children. When DiFulvio resigned, the reason she gave Frankfort was her need to care for her children herself.
DiFulvio gave her doctor a different explanation, and on August 1, 2008, he gave her a letter summarizing her complaints and his recommendations. The doctor reported that he had been seeing DiFulvio for seven weeks and prescribed medication for the symptoms of anxiety she described and attributed to the stress she experienced when giving young children haircuts; she had told him that she left her job because of that stress. He did not indicate that he recommended the resignation. Rather, he observed that DiFulvio could not return to work at present and recommended she attend psychotherapy and apply for disability or unemployment benefits. After hearing DiFulvio's testimony about her anxiety before the Appeals Examiner, Frankfort testified that if DiFulvio had raised the issue before resigning she would have assigned her to work during after school hours when older children tend to come to the salon. She said the issue had never come up.
The Appeals Examiner did not credit DiFulvio's belated and self-contradictory explanation for leaving work. He concluded that DiFulvio was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because she had left work voluntarily to care for her children - a personal reason unrelated to her work that must be deemed voluntary pursuant to N.J.A.C. 12:17-9.1(e)(2). The Appeals Examiner further determined that DiFulvio had not presented medical evidence showing that her anxiety was caused or aggravated by her duties, as required by Wojcik v. Board of Review, 58 N.J. 341, 344 (1971). See ibid. (indicating that the claimant must produce more than a "doctor's equivocal statement" connecting the medical condition and the work).
In considering DiFulvio's challenge to the Appeals Examiner's determination, the Board observed that DiFulvio had not resigned on the recommendation of her doctor. With that addition, the Board agreed with and adopted the Appeals Examiner's decision.
Proper application of N.J.S.A. 43:21-5(a) requires the Board to "'differentiate between (1) a voluntary quit with good cause attributable to the work and (2) a voluntary quit without good cause attributable to the work.'" See Brady v. Bd. of Review, 152 N.J. 197, 213-14 (1997) (quoting Self v. Bd. of Review, 91 N.J. 453, 457 (1982)). In this case, the Board considered the relevant question and concluded that DiFulvio's resignation was driven by personal reasons and not by a substantiated infirmity attributable to work. Because the Board's determination "is supported by sufficient credible evidence on the record as a whole," we affirm. R. 2:11-3(e)(1)(D).
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