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Hair Systems, Inc v. Board of Review

June 1, 2011

HAIR SYSTEMS, INC., APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND DANIEL FOX, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 219,235.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 13, 2011

Before Judges Sapp-Peterson and Simonelli.

Appellant, Hair Systems, Inc. (Hair Systems), appeals from the November 16, 2009 decision by the Board of Review (Board) finding that its former employee, respondent Daniel Fox, was not disqualified from receiving unemployment benefits for the weeks ending August 2, 2008, through September 27, 2008, and that Fox was not required to refund the $3996 in benefits he received for that period. We affirm but remand for further proceedings at the request of the Board.

Fox commenced his employment with appellant in 1998 and worked continuously until he sustained a work-related injury on July 6, 2006. He sustained a partial collapse of both lungs. He received workers' compensation benefits through February 2008, at which time he was cleared to return to work with restrictions. One such restriction was that he not perform the same duties to which he had previously been assigned because he could be exposed to certain chemicals. When he contacted appellant, Fox claims the Human Resources Department advised him that he had been terminated for filing a third-party suit.

Fox filed for unemployment benefits on July 27, 2008. On October 7, the Deputy Director determined that he was disqualified for benefits because he left work voluntarily without good cause attributable to his employment, and sought a refund for benefits totaling $3996 that Fox had received for the weeks ending August 2, through September 27.

Fox appealed and a telephonic hearing was held on June 10, 2009, at which all parties participated. The critical issue before the Appeals Examiner was a determination whether Fox purportedly resigned or abandoned his job and when he ceased receiving workers' compensation benefits.

Fox testified that he received workers' compensation benefits through February 2008. At that time, he was cleared to return to work with restrictions. He contacted Arlene Perea (Perea), Hair Systems' Human Resources Manager, and was told at that time that he had been fired because he filed a workers' compensation suit.

Perea did not know when Fox ceased receiving workers' compensation but testified that Hair Systems sent letters to Fox on February 14, 2007, April 22, 2007, and June 22, 2007. The June 22 letter advised:

As you know, Hair Systems[,] Inc. . . . has provided you with correspondence concerning its employment policies pertaining to Family and Medical Leave, Workers['] Compensation, COBRA, 401K Pension Plan and other documentation. Under Hair Systems' Family and Medical Leave policy contained in its employee handbook, you were required to provide the company with a certification from your health care provider, continue to make co-payments for health insurance, and personally speak with Human Resources or other management supervisor[.]

According to Perea, additional correspondence was sent to Fox dated July 9, stating: "'You know we have sent you numerous letters by both regular and certified mail. The correspondence has covered your rights and obligations under the Family and Medical Leave Act consolidated under the Budget Reconciliation Act, Hair Systems Incorporated employment policies and other employment issues.'" Perea acknowledged that if Fox was still receiving workers' compensation benefits in 2007, when the letters were being sent to him, there would have been no reason for him to return to work. She was unable, however, to provide any information concerning when Fox's workers' compensation benefits ceased.

Fox acknowledged receiving the letters but indicated that he did not open them because he understood that all communications were to flow between the attorneys. He testified that each time he received correspondence, he turned it over to his attorney.

The Appeals Examiner was unable to complete the hearing because he was slated to commence another hearing. Both parties agreed to provide information regarding the date on which workers' compensation benefits ceased, which the Appeals ...


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