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Carlomagno v. Board of Review


August 6, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 191,428.

Per curiam.


Submitted June 8, 2010

Before Judges Messano and LeWinn.

Appellant appeals from the January 22, 2009 final agency decision of the Board of Review (Board), affirming the Appeal Tribunal's determination that she left work voluntarily, not for good cause, and requiring her to refund over $13,000 in unemployment benefits. We affirm.

We summarize the evidence presented before the Appeal Tribunal.

Appellant worked as a payroll processor for Checkpoint H.R., LLC, from October 2002 through June 6, 2008, when she left employment. Her work station was in an area divided into cubicles. Appellant claimed that she developed an intolerance for the sound of co-workers' acrylic nails typing on keyboards, to the extent that she manifested physical and nervous symptoms requiring medical treatment.

The first episode of these work-related symptoms occurred in 2003. At that time the business' co-owner accommodated appellant by changing her work location. She stated that all of her symptoms abated as a result.

No further problems arose until sometime in March or April 2008, when co-workers with acrylic fingernails were relocated near appellant's work station. This time, her employer did not offer to make any accommodations. Appellant stated that she did not supply her employer with any medical documentation as to her symptoms because she did not want to go to a doctor or take medications.

Appellant provided this information in a telephonic hearing before the Appeal Tribunal on July 29, 2008, in which Checkpoint did not participate. On August 5, 2008, the Appeal Tribunal issued a decision finding that appellant left work involuntarily with good cause attributable to the work and was therefore eligible for unemployment benefits.

Checkpoint filed an appeal on August 13, 2008; in response, the Board remanded the matter to the Appeal Tribunal for additional testimony.

Appellant and Checkpoint participated in another hearing on November 24, 2008. Appellant essentially reiterated her testimony from the prior hearing. Michelle Moylan, Checkpoint's Human Resource Specialist, testified that appellant never provided her with "any type of medical documentation[,]" and left no "recourse for [her] to assist [appellant.]" Moylan disputed appellant's claim that Checkpoint "intentionally provoked [her] to leave[,]" noting that she was "an employee for five years."

At the conclusion of the hearing, the Appeal Tribunal issued a decision rescinding its prior determination, and concluding that appellant did leave work voluntarily without good cause attributable to the work and, therefore, was disqualified from receiving benefits. This decision was based upon the following findings of fact [Appellant] had worked for the employer for approximately five years and during that time had made several requests to move her seat due to being annoyed by another co[-]worker. On all occasions, the employer complied. The last incident occurred in the spring of 2008. [Appellant] had been tormented by the continuous sound of two of her co[-]workers['] repetitive tapping on their keyboards. [Appellant] found the constant tapping of their acrylic fingernails against the keys to be extremely agitating. [Appellant] tried to use earplugs to block the sound out, but that did not work. [Appellant] did not provide the employer with [a] medical certification, in support of her contention, that she was suffering from stress as a result of the typing situation.

The employer . . . denied [appellant's] final request to move her seat. There were no other places for [appellant] to sit.

Because the employer could not accommodate [appellant's] request, [she] chose to leave. [Appellant] was of the opinion that by denying her request, it was evident that they were intentionally trying to get rid of her.

The Board issued its final decision on January 22, 2009, affirming the Appeal Tribunal, and concluding that "[s]ince . . . appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there [was] no valid ground for a further hearing."

On appeal, appellant contends that: (1) she had good cause attributable to her work justifying her resignation and, therefore, was qualified for benefits; and (2) requiring her to repay benefits previously received would be inequitable. Having reviewed the record in light of these contentions, we are convinced they are without merit. We are satisfied that the Board's decision affirming the Appeal Tribunal's decision of November 24, 2008, is "supported by sufficient credible evidence on the record as a whole . . . ." R. 2:11-3(e)(1)(D). We add only the following comments.

Our scope of review of decisions by administrative agencies is limited to determining "'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 their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We may not engage in an independent assessment of the evidence. Ibid. Consequently, when the record contains sufficient credible evidence to support the agency's findings, we must uphold those findings even though we might have reached a different result. Id. at 657.

We also accord substantial deference to an agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. of Twp. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). Here, the governing statute is N.J.S.A. 43:21-5(a), which provides that an individual who "has left work voluntarily without good cause attributable to such work[]" is disqualified from receiving unemployment compensation benefits. In order to avoid disqualification, the claimant has the burden to establish that she involuntarily left work for "good cause attributable to [the] work." Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal citations omitted).

The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . . [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).]

Here, in 2003 appellant sought and received an accommodation for the workplace situation she claimed caused her stress. In 2008, appellant claimed that the sound of her co-workers' acrylic fingernails on their keyboards was so stressful that she was required to seek medical attention. However, at no time did appellant provide her employer with any evidence of such medical attention in support of her claim.

To support a claim for unemployment compensation benefits on this basis, appellant had the burden to present competent medical evidence to show a causal connection between the pertinent work conditions and her health problems. See Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971). Appellant presented to the Appeal Tribunal a statement from Dr. Dennis Hupka, a chiropractor who began treating her on May 14, 2008. Dr. Hupka stated that appellant "presented to [his] office experiencing headaches, dizziness, cervical and shoulder pain with muscle spasms which were brought on by workplace stress[,]" adding that "[p]rior to being exposed to these working conditions [appellant] was in her usual state of good health." Clearly, appellant was the source of these statements. As Dr. Hupka first saw appellant in May 2008, at the time when the problem of stress caused by co-workers' acrylic fingernails had reappeared, the doctor had only appellant's subjective statements to go on.

Under the circumstances, we are satisfied that Dr. Hupka's input constitutes the type of "conclusory statements" that we have determined do not satisfy the level of proof required by N.J.A.C. 12:17-9.3(d) ("medical certification shall be required to support a finding of good cause attributable to work"). See Brown v. Bd. of Review, 117 N.J. Super. 399, 404 (App. Div. 1971).

We agree with the Board's conclusion that appellant has failed to satisfy her burden of establishing good cause for leaving her employment. Dr. Hupka did not advise appellant to quit her job due to the physical manifestations of work-related stress which she reported to him. Nor did Dr. Hupka state that appellant's resignation was medically necessary. Instead, Dr. Hupka merely stated that appellant's headaches, dizziness and other physical conditions were the result of work-related stress (again, as reported by appellant), which is quite different from a statement that the only way to control these physical conditions would be for appellant to resign from her employment.

We briefly address appellant's contention that it is inequitable to require her to repay the unemployment benefits she previously received. N.J.S.A. 43:21-16(d) provides that "any person . . . [who] has received any sum as benefits . . . while [s]he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits . . . shall be liable to repay those benefits in full." We have noted that [t]he broad scope of the refund provision is rooted in and essential to the accomplishment of the basic purpose of the Unemployment Compensation Act. The eligibility and disqualification provisions of the unemployment law are designed to preserve the Unemployment Trust Fund for the payment of benefits to those individuals entitled to receive them. . . .

This court has recognized that the recovery of improperly paid unemployment compensation benefits furthers the purpose of the unemployment compensation laws. The public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been.

That the individual suffers a hardship is unfortunate, but is necessary to preserve the ongoing integrity of the unemployment compensation system. [Bannan v. Bd. of Review, 299 N.J. Super. 671, 674-75 (App. Div. 1997) (citations omitted).]

A refund of the benefits paid to appellant was properly ordered in this case.



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