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Carol D. Prosceno v. Board of Review

September 21, 2011


On appeal from the Board of Review, Department of Labor, Docket No. 250,422.

Per curiam.


Submitted September 12, 2011

Before Judges Sabatino and Ashrafi.

Claimant Carol Prosceno appeals from a final decision of the Board of Review, Department of Labor and Workforce Development, denying her claim for unemployment compensation benefits. We affirm.

Prosceno worked from August 2007 through early September 2008 as a sales and cash register clerk for a Shop-Rite supermarket in Cape May County. She went on disability leave to have lung surgery, which was performed on September 5, 2008. Her disability was expected to last for two to three months. During the period of recovery, in October 2008, she was a passenger in a car that was struck in the rear, and she suffered injuries to her head, neck, back, and ribs.

As of December 15, 2008, her lung surgeon determined she had recovered from the surgery and discharged her from his care. Prosceno alleges she could not find a doctor in New Jersey who would treat her for the injuries she suffered in the car accident because she had no medical insurance and could not afford to pay for treatment.*fn1 She claims she had no income and was in danger of becoming homeless. In January 2009, Prosceno moved to South Carolina, where she received medical treatment for her injuries and obtained living accommodations. Her South Carolina doctor eventually cleared her to return to work without restrictions on August 19, 2009.

Prosceno states that her job at Shop-Rite was no longer available when she was healthy enough to return to work, and she has been unable to find another job. She filed a claim for unemployment compensation benefits on August 23, 2009. The Deputy Director of the Division of Unemployment Insurance denied the claim by written notice mailed on September 2, 2009. Prosceno appealed that determination, and a telephone hearing was held before an appeals examiner. On November 30, 2009, the Appeal Tribunal denied her appeal on the ground that she had left work for personal reasons and not for good cause related to her employment. On further administrative appeal, the Board of Review affirmed the decision of the Appeal Tribunal by notice dated June 4, 2010. Prosceno then filed a notice of appeal to this court.

Our standard of review is limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 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 Rev., 343 N.J. Super. 401, 406 (App. Div. 2001) (scope of appellate review in appeal from denial of unemployment benefits). We conclude the Board of Review's decision was not contrary to law or arbitrary, capricious, or unreasonable.

Prosceno contends her financial circumstances prevented her from remaining in New Jersey while recovering from her surgery and motor vehicle injuries. She argues she had good reason to move to South Carolina and she should not be disqualified from collecting unemployment benefits now that she is medically cleared to work but cannot find a job. While her situation warrants sympathy, it does not change the legal disqualification found by the Board of Review for her claim of unemployment benefits.

The relevant unemployment compensation statute, N.J.S.A. 43:21-5(a), disqualifies payment of benefits if the claimant "left work voluntarily without good cause attributable to such work," until after the claimant has become re-employed and worked for a minimum time period. Department of Labor regulations state that the claimant has the burden of proving she did not leave work voluntarily or she had good cause directly attributable to her employment for leaving the job.

N.J.A.C. 12:17-9.1(b) and (c). If the claimant relocated to another area for personal reasons rather than because of the work, the relocation shall be considered a voluntary leaving of the job for reasons that are not attributable to the employment. N.J.A.C. 12:17-9.1(e)(6).

In this case, Prosceno moved to South Carolina for personal financial and medical reasons that were not attributable to her job at Shop-Rite. Her lung condition and October 2008 car accident had nothing to do with her employment. Therefore, the Appeal Tribunal and the Board of Review did not commit error in finding that she was disqualified from ...

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