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Judith A. Messick v. Board of Review and

June 30, 2011

JUDITH A. MESSICK, APPELLANT,
v.
BOARD OF REVIEW AND A BEST MANAGEMENT, INC. SP AC, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 215,023.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 28, 2011

Before Judges Kestin, Newman and Eichen.

Judith A. Messick, a claimant for unemployment benefits, appeals from a final decision of the Board of Review holding her "disqualified for benefits . . . under N.J.S.A. 43:21-5(a) as she left work voluntarily without good cause attributable to such work." We affirm.

The Board of Review's decision was the final step in an internal agency process. That determination was based upon findings of fact at variance with those made in the Appeal Tribunal, which had rendered a decision in favor of the claimant that was disputed by the employer, A Best Management, Inc. SP AC. The Appeal Tribunal decision, in turn, had overruled a decision by the Deputy evaluating the claim in the first instance, who held claimant to be disqualified for the benefits she sought.

The standard of review we apply in appeals from administrative agency decisions, including those of the Board of Review, embodies limitations. "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Board of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Because we are required to defer to an agency's technical expertise, its superior knowledge of its subject matter area, and its fact-finding role, see Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Board of Review, 203 N.J. Super. 241, 245 (App. Div. 1985), "if [its] factual findings are supported by sufficient credible evidence, courts are obliged to accept them." Self v. Board of Review, 91 N.J. 453, 459 (1982). See also Clowes v. Terminix International, Inc., 109 N.J. 575, 587 (1988); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981); In re Suspension of License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1979), aff'd, 84 N.J. 303 (1980).

The same standard does not apply internally within an agency with layers of decision-making and review. The appeal to us from the Board of Review is from the highest decision-making entity in the agency that administers entitlements to unemployment compensation benefits. See Unemployed-Employed Council of N.J., Inc. v. Horn, 85 N.J. 646,653-54 (1981); see also, generally, Department of Health v. Tegnazian, 194 N.J. Super. 435, 449 (App. Div. 1984). As a general rule, an administrative agency has discretion in choosing the "procedural mode of action" within the agency that it will undertake in its exercise of its decision-making function; but any such "procedural mode" is "valid only when there is compliance with the provisions of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, and due process requirements." In re Provision of Basic Generation Serv. for Period Beginning June 1, 2008, 205 N.J. 339, 347 (2011) (citing Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 137 (2001)); see also, e.g., Pitts v. Racing Comm'n, 185 N.J. Super. 190, 195-96 (App. Div. 1982). The procedures governing hearings of claims for unemployment compensation, as conducted by the Deputies, the Appeal Tribunal, and the Board of Review are exempt from many of the Administrative Procedure Act's requirements and the rules adopted pursuant thereto for adjudicating contested cases, N.J.A.C. 1:1-1 to -21. See Horn, supra, 85 N.J. at 662.

The regulations governing the internal appeals process in unemployment compensation proceedings clearly establish the Board of Review's authority to engage in a plenary, de novo review of the evidentiary record; i.e., to make findings independent of those made on the Appeal Tribunal level, and to conduct further evidentiary hearings. See N.J.A.C. 12:20 (Appendix, 1:12-14.3); Horn, supra, 85 N.J. at 653-54.

It is a regime markedly different from agency-head reviews of decisions rendered in contested cases by administrative law judges assigned by the Office of Administrative Law. In such instances, where the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25; see also N.J.S.A. 52:14F-1 to -23, establishes a mode of initial factual determination that is separate from and independent of the agency from which the contested case arises, the contemplated dynamic on the administrative level is to require the agency head, in making findings of fact at variance with the administrative law judge, to state with particularity its reasons for rejecting the findings; and it may not reject the findings "as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent and credible evidence in the record." N.J.S.A. 52:14B-10(c). See Clowes, supra, 109 N.J. at 587-88; In re Hruska, 375 N.J. Super. 202 (App. Div. 2005); S.D. v. Division of Medical Assistance, 349 N.J. Super. 480, 485 (App. Div. 2002); Tegnazian, supra, 194 N.J. Super. at 442-51. As we have stated, the paradigm in unemployment compensation cases is different.

The issues in this case arose from an incident in Gloucester Manor, a health care facility in which claimant worked as a charge nurse. She alleged that, on October 29, 2008, as she was administering medications from her medical cart, she was kicked in her back by the assistant director of nursing as that person was assisting in moving residents toanother wing because of a loss of heat. According to claimant, the assistant director of nursing kicked her as she passed by, causing claimant to fall into her cart, which then rolled into the wall. Claimant asserted that she received "a large bruise on her right thigh where she had hit the cart." She reported the incident and the alleged injury to a supervisor and took some pain medication. The next day, she testified, was a scheduled day off for her, and she went to an emergency room because of the pain. Several days later, she filed criminal charges against the offending fellow employee, but eventually withdrew them.

Claimant took a five-week medical leave until December 2, 2008. She contended that, on her return, she was supposed to be given "light duty", but was not accommodated and, as a result, was "in serious pain" by the end of the day. On the same day, claimant asserted, her assailant made an obscene gesture to her and said: "I'm going to get your license." Claimant's complaint to an administrator was unavailing. As a result of this treatment, claimant resigned from her job and filed an application for unemployment benefits.

That application was dealt with initially in a routine manner. The claim was first considered by a Deputy to the Director of the Division of Unemployment Insurance, who deniedthe application based on a finding that claimant was disqualified from benefits because she had left her job voluntarily without good cause attributable to the work. Claimant appealed from that determination to the Appeal Tribunal. Following a brief telephone hearing at which only claimant testified, the appeals examiner ultimately found: "No disqualification applies under N.J.S.A. 43:21-5(a), as the claimant did not leave work voluntarily without good cause attributable to such work."

The employer, through its representative, appealed to the Board of Review on the grounds "that this representative, who[] exclusively represents employer at unemployment hearings before the Appeal Tribunal, was unavailable on the date of the hearing" because of a conflict with his wedding ceremony, and that the appeals examiner had declined to adjourn the hearing. The Board of Review found this reason to constitute "good cause", and it remanded for a new "hearing and decision on all issues." The new hearing, also telephonic, was held on two separate days, with witnesses on both sides supporting and refuting claimant's allegations. The result was detailed findings by the same appeals ...


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