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David D. Lowery v. Board of Review

May 16, 2011

DAVID D. LOWERY, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND PROJECT U.S.E., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 201,422.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011

Before Judges Baxter and Koblitz.

David D. Lowery appeals from a January 26, 2010 final agency decision of the Board of Review (Board), affirming the September 4, 2009 decision of the Appeal Tribunal disqualifying Lowery from unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because he left work "voluntarily without good cause attributable to the work." Concluding that Lowery's injuries were work-related and no suitable employment was available, we reverse.

This matter has a lengthy procedural history. On November 20, 2008, the Appeal Tribunal found Lowery eligible for benefits as "the employer was unable to offer the claimant any work within his medical restrictions." After the employer appealed, the Board sent the matter back for additional testimony "to establish whether the claimant's medical condition is work-related . . . ." On April 3, 2009, after hearing only from the employer, the Appeal Tribunal determined that Lowery was disabled due to a non-work-related injury that he sustained on December 26, 2007, and that his doctor had released him to return to work as of June 23, 2008. The Appeal Tribunal found that "[h]e was not required to perform heavy lifting or movements. [Lowery] did not return to work because the commuting back and forth to work would aggravate his back condition." On June 8, 2009, the Board remanded for additional testimony from the executive director of Project U.S.E.,*fn1 Lowery's employer, and Lowery himself, who had not received notice of the April 3, 2009, hearing. On September 4, 2009, the Appeal Tribunal found the same facts it had found on April 3, 2009, and also found that "[c]ontinuing work was available." This time the Board agreed, and Lowery appeals from the Board's January 26, 2010 determination.

Lowery was hired to work as a youth worker by Project U.S.E. in 1995. He worked until December 26, 2007, when he became disabled due to the aggravation of injuries to his hip and back he sustained in a 2006 motor vehicle accident. He received temporary disability benefits through June 23, 2008, when his doctor declared him fit to return to work for light duty. Lowery's neurologist reported on June 5, 2008, that Lowery suffered from "chronic low back pain based on significant findings on MRI of the lumbar spine." He also reported that Lowery "[was] required to take multiple pain medication, physical therapy . . . [and] should refrain from heavy lifting or any strenuous work activity. It will aggravate his low back pain." Rather than return to work, Lowery sought unemployment compensation.

Lowery contended that his 2006 motor vehicle accident was work-related, and his 2007 back and hip problems stemmed from the earlier accident. The claim certification supporting his application for temporary disability benefits at the end of 2007, however, indicated that his injuries were not connected with his employment. He would not have been eligible for temporary disability benefits had his injury been work-related. See N.J.S.A. 43:21-26; N.J.S.A. 43:21-29. He did not file a claim for worker's compensation benefits in 2007, and the documentation from his doctor at that time stated that his injuries were not work-related.

Lowery maintains that his 2007 injuries resulted from an aggravation of injuries suffered in the 2006 accident when he was in the company van parked in front of the Church waiting for our boys to come out.

A guy came around the corner and hit me from behind, pushed the truck about around 50 feet. Police came. Ambulance came took me to the hospital.

Lowery claims that, although he returned to work after the accident, he became unable to continue in December 2007 as a result of his work duties aggravating the injuries from the earlier work-related accident.

Lowery testified he was told by his employer that no suitable work was available because, regardless of his assigned duties, Lowery would have to climb three flights of stairs at the jobsite, which Lowery was unable to do in his disabled condition. Lowery testified that his job duties working with youth involved "physical stuff" including not only climbing stairs, but athletic activities such as rock climbing and outdoor games.

Lowery's supervisor initially testified in accord, indicating "[i]t's definitely a labor intensive kind of position." At a later hearing, the executive director said that the job "basically involved sitting, standing and then most[ly] walking upstairs in addition to driving and so light duty is kind of a standard day at work." Lowery argues that his injury was work-related, no appropriate light duty was available, and he should therefore be accorded benefits.

Lowery also testified, however, that the strenuous nature of his job duties was not the immediate cause of his resignation. He said that after his motor vehicle injuries were aggravated at work, he could not sit in his car for the commute from his home in Plainfield ...


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