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Stephen V. Cirello v. Board of Review

July 5, 2011


On appeal from the Board of Review, Department of Labor, Docket No. 219,097.

Per curiam.


Submitted March 2, 2011

Before Judges Fuentes and Nugent.

Stephen V. Cirello appeals from the final decision of the Board of Review denying his application for unemployment compensation benefits. We affirm.

Appellant was employed as a junior mechanic for Plumb-Rite Plumbing and Heating, Inc., from November 13, 2006 through June 19, 2008, although the last day he performed any work was May 9, 2008. Appellant's employer's representative, Michael Fallon, testified before the Appeals Tribunal that his record reflected appellant's actual date of separation as June 19, 2008.

On May 12, 2008, appellant reported to Fallon that he had injured his back in February 2008 and was therefore applying for workers' compensation benefits, which he collected from May 12 through June 1, 2008. This was the first notice appellant gave his employer concerning this work-related injury. Appellant reported to work on May 28, 2008, the date his treating physician authorized him to return to work on a light-duty schedule. Approximately one hour after his return to work, appellant advised Fallon that his back was still hurting him. Thereafter, he again collected workers' compensation benefits and was scheduled to return to work on June 4, 2008.

According to Fallon, when appellant failed to return to work after June 4, 2008, he called appellant on his cellular phone approximately ten times; each time he left a message inquiring about appellant's plans and suitability to return to work. Fallon testified that there was a job available for appellant, including light-duty work if necessary. Appellant never returned Fallon's calls or reported back to work.

Appellant testified that he did not return to work because there was no light-duty work for him to do. According to appellant, he attempted to return to work for one day in July 2008, but was placed inside a box truck to go on service calls. Appellant testified that this type of work required him to carry a forty pound torch approximately one hundred yards to the work site. Appellant conceded, however, that he did not ask his employer for assistance regarding these tasks. Fallon disputed that appellant returned to work at any time after May 28, 2008.

Against this evidence, the Appeals Tribunal found appellant ineligible to receive unemployment compensation benefits because he had voluntarily resigned from his job for reasons unrelated to the work. N.J.S.A. 43:21-5(a). The Tribunal noted:

Although the claimant had a medical condition that may have been aggravated by the work duties, the claimant was required, but did nothing reasonable to preserve his employment and remain employed. His failure to do so is supported by the claimant's actions of leaving the work instead of requesting time off or other duties and his failure to contact the employer after 5/28/08 especially since he was aware that the employer attempted to contact him.

The Board of Review adopted the Appeals Tribunal's findings and affirmed its decision denying appellant unemployment compensation benefits under N.J.S.A. 43:21-5(a). Appellant now urges us to reverse the Board's decision because, in appellant's view, the decision was "replete with errors" and not supported by competent evidence.

Our capacity to review decisions of an administrative agency is limited. Shuster v. Bd. of Review, 396 N.J. Super. 240, 245 (App. Div. 2007) (citing State-Operated Sch. Dist. v. Gaines, 309 N.J. Super. 327, 331 (App. Div.), certif. denied, 156 N.J. 381 (1998)). As long as "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." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (internal quotation marks and citations omitted). The agency's determination should only be reversed if it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Shuster, supra, 396 N.J. Super. at 246 (internal quotation marks and citations omitted).

Applying these principles to the record before us, we discern no basis to interfere with the Board's decision. The Appeals Tribunal was free to consider the credibility of the witnesses in reaching its ultimate conclusion. The Tribunal, and by adoption the Board, found unacceptable appellant's failure to request assistance if the work assigned to him was too physically demanding, or alternatively to seek a light-duty work schedule. Equally problematic was appellant's failure to return his employer's numerous telephone calls ...

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