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Helen E. Cerreto v. Board of Review


February 23, 2011


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 208,827.

Per curiam.


Submitted December 8, 2010

Before Judges Fuentes and Ashrafi.

Claimant Helen Cerreto appeals from a final decision of the Board of Review, Department of Labor, (the Board) denying her claim for extended unemployment compensation benefits. We affirm.

Cerreto worked for sixteen years as a receptionist for the law firm of Stern & Kilcullen located in Roseland, Essex County. In March 2006, she took leave and obtained temporary disability benefits from the State because of a serious medical condition affecting her back. Near the end of her eligibility for temporary disability benefits, Cerreto called the law firm and left a voicemail message for the office manager, Madelene Magazino. In relevant part, Cerreto's message was as follows:

I'm still not well. I'm not coming back. I have to stay out on sick leave and I'll be speaking to you down the road, you know, regarding my sick leave and my sick pay and transferring my 401-K to my IRAs.

I just can't move and now my hip is going out and I don't want to be a burden to the firm of Stern & Kilcullen. I've given them seventeen wonderful years and I can't give you any more at this time.

I'm living down in Manalapan [Monmouth County]. The trip is two hours each [d]ay and I think with my particular problem the doctors have suggested that I don't drive the two hours each day. However, I was willing to do it, but they said it's dangerous for me because of the rheumatoid osteoporosis and the fused disks in my spine. One slip, one push, one accident and I could be paralyzed for life. So rather than run that risk -- I had a long time to think about this.

This is just a terrible time in my life and I'm doing the best I can to carry on and go forward and walk and I go to the doctors, the chiropractor and the physical therapist every morning. It's costing me close to $35,000 and I'm still -- although better, it will never be healed, but I still have a lot of pain with it and I know you understand.

The following day, September 26, 2006, Magazino wrote a letter to Cerreto with the subject line "Resignation of Reception Position With Stern & Kilcullen, LLC." The text of the letter stated in full:

This letter shall serve as a formal confirmation of your telephone voice mail to me of Monday, September 25, 2006 wherein you advised that you will not be returning to work. If this is not correct, please advise me within ten days of the date of this letter.

Cerreto did not respond to the letter. Instead, she collected private disability benefits from the law firm's insurance carrier from September 2006 through December 2007. She also filed an application for unemployment benefits on October 22, 2006, but she did nothing more on the application at that time because she was receiving disability benefits.

In July 2008, the Department of Labor notified Cerreto that she might be eligible for extended unemployment benefits. She applied and received benefits from July 12 through December 6, 2008, and from January 10 through August 15, 2009. Stern & Kilcullen appealed the decision to grant Cerreto unemployment benefits, arguing that she had voluntarily left her employment as of September 2006.

An Appeal Tribunal conducted a telephone hearing and decided the matter in favor of Cerreto. In the hearing, Cerreto testified that, in November 2007, she had called Magazino to arrange for returning to work but was told that her position was no longer available and that she lived too far away in Monmouth County. Magazino testified and disputed that she ever received such a telephone call from Cerreto. The Appeal Tribunal declined to make a credibility finding between the conflicting testimony, but it determined the phone call was not necessary for its decision.

The Appeal Tribunal concluded that Cerreto's September 25, 2006 voicemail message did not indicate she was resigning. The message was not proof that she had voluntarily and permanently left her employment for health and other reasons, as the employer claimed. The Appeal Tribunal concluded that Cerreto was eligible for unemployment benefits.

On further administrative review, the Board affirmed the Appeal Tribunal's findings of fact, but it disagreed with the conclusions it had reached from those facts. In its written decision of January 15, 2010, the Board stated:

The Appeal Tribunal held that the claimant did not leave the job voluntarily, concluding that the employer's letter of September 26, 2006 was notice to the claimant that her job was no longer available. We disagree.

The employer's correspondence of September 26, 2006 was prompted by a communication from the claimant wherein the claimant indicated she would not be returning to work due to ill health. In an effort to ensure there was no misinterpretation of the claimant's message, the employer acted responsibly by confirming, in writing, that it was the claimant's intention not to return to work. The second and final sentence of the correspondence instructed the claimant to contact the employer within ten days of the date of the letter, if the employer had misinterpreted the claimant's intentions. There was no mention that the claimant was being discharged or that the claimant's job was in jeopardy. Thus, we find that the Appeal Tribunal's judgment that N.J.S.A. 43:21-5(b) is controlling in deciding this matter is faulty and that this matter must be decided under N.J.S.A. 43:21-5(a), as the claimant severed the employer-employee relationship when she failed to communicate with the employer after receiving the letter.

Finally, as there was no substantial evidence provided which established that the claimant suffered from a medical condition that was caused or aggravated by her employment, the claimant has not demonstrated good cause for leaving the job and is, therefore, disqualified for benefits as of September 24, 2006, in accordance with N.J.S.A. 43:21-5(a).

As there were two determinations of entitlement, the claimant is not liable to refund the benefits received [for] the period ending August 15, 2009. However, no employer's account shall be charged for such benefits paid.

The Director will determine the claimant's refund liability for subsequent periods, in accordance with established periods.

On appeal before us, Cerreto contends that the Board's decision should be reversed and the Appeal Tribunal's decision reinstated because the Board made errors of law and fact.*fn1

Our standard of review is limited. Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985).

We will reverse a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. Brady v. Bd. of Rev., 152 N.J. 197, 210-11 (1997). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); see also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001) (scope of appellate review in appeal from denial of unemployment benefits).

We conclude the Board's decision was not arbitrary, capricious, or unreasonable simply because the Board rejected the Appeal Tribunal's conclusion and reached its own from undisputed evidence. There is no dispute that Cerreto left the voicemail message that was transcribed and that she did not respond to the employer's letter of September 26, 2006. Nor is there a dispute that she was receiving long-term disability benefits in September 2006 and continued to do so for the next fifteen months. Based on that evidence, the Board could reasonably conclude that Cerreto had indicated her intent to terminate her employment because her health did not permit her to return.

Furthermore, we disagree with Cerreto that the Board's conclusion is contrary to the holding of DeLorenzo v. Board of Review, 54 N.J. 361 (1969). In that case, the Supreme Court agreed with the Board that "disqualification [from unemployment benefits] arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are detrimental to an existing physical condition or state of health which did not have a work connected origin." Id. at 364. That holding does not undermine the Board's conclusion in this case.

The fact that Cerreto apparently changed her mind about returning to Stern & Kilcullen more than a year later, as her disability benefits were ending, does not require a different conclusion.

We are also not persuaded by Cerreto's citation to Combs v. Board of Review, 269 N.J. Super. 616 (App. Div. 1994), and Garcia v. Board of Review, 191 N.J. Super. 602 (App. Div. 1983). In those cases, we held that the employee was unable to perform the duties of the job but that the employer had not proven the employee's intent to quit. On the record presented here, the Board relied on Cerreto's own words and actions to conclude she intended to quit in September 2006.

Finally, the Board's mistaken reference to N.J.S.A. 43:21-5b does not mean it reviewed the wrong section of the statute in making its decision. The Board stated correctly that Cerreto's disqualification arose under N.J.S.A. 43:21-5a, not N.J.S.A. 43:21-5b.


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