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Vicki L. Vanderberg v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2012

VICKI L. VANDERBERG, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND LUCY COVELLO, M.D., P.A., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 290,563.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2012

Before Judges Parrillo and Alvarez.

Vicki Vanderberg appeals from a February 22, 2011 final determination of the Department of Labor's Board of Review (Board) denying her unemployment compensation benefits. We affirm.

The Deputy Director of the Division of Unemployment and Disability Insurance (Deputy) found Vanderberg disqualified because she voluntarily left employment on May 23, 2010, as a result of her mother's illness. By statute, an employee who leaves "work voluntarily without good cause attributable to such work," is ineligible for benefits. N.J.S.A. 43:21-5(a). The Deputy noted that personal reasons, such as the one in this case, are not "good cause attributable to the work."

Vanderberg nonetheless appealed the determination, and a hearing was conducted on August 9, 2010. On August 11, the Appeal Tribunal affirmed the Deputy's determination. Vanderberg then appealed to the Board.

Vanderberg's last day of work, according to her testimony, was May 23, 2010. She then left to travel to Arizona to care for her gravely ill mother. On Vanderberg's last day, she had informed her employer of her plans by leaving a message on the employer's answering machine. She told her employer that she did not know the length of time she would be out-of-state because of the nature of her mother's illness. Vanderberg left another message on May 31, on her employer's cell phone, informing her that she was still unsure about her return date.

On June 4, Vanderberg received a letter from her employer advising that she was being replaced.

The employer, Dr. Lucy Covello, had only one employee - Vanderberg. Covello testified at the Appeal Tribunal hearing that she would have accommodated Vanderberg if she had been given even an approximate return date. By June 4, however, Vanderberg had missed eleven days of work, and Covello could no longer maintain her office without a replacement. In response to Covello's June 4 letter, Vanderberg wrote back on June 5, and indicated she would return to work on June 10, 2010, and did in fact return to New Jersey on that date.

Now on appeal, Vanderberg raises the following points for our consideration:

THE BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, ACTED [ARBITRARILY] AND UNREASONABLY IN FAILING TO FOLLOW ITS REGULATIONS, SPECIFICALLY, IN FAILING TO ABIDE BY [N.J.A.C.] 12:17-9.11(b)

POINT I

APPELLANT'S TERMINATION BY [RESPONDENT]

EMPLOYER BASED UPON ABANDONMENT OF POSITION AFTER SHE FAILED TO RETURN TO WORK FOLLOWING AN APPROVED LEAVE OF ABSENCE WAS NOT VALID FOR PURPOSES OF DISQUALIFYING HER FOR UNEMPLOYMENT BENEFITS BECAUSE IT TOOK EFFECT BEFORE THE EXPIRATION OF THE FIVE-DAY PERIOD SET FORTH IN [N.J.A.C.] 12:17-9.11(b)

We defer to "an agency decision unless it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). Conversely, we are obligated to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

First, Vanderberg contends that N.J.A.C. 12:17-9.11(b) was violated in this case because an employee is not "deemed to have abandoned her employment by failing to return to work, until the expiration of five consecutive days from the last day of an approved leave of absence." Espina v. Bd. of Review, N.J. Dep't of Labor, 402 N.J. Super. 87, 89 (App. Div. 2008). This regulation is inapplicable, however, as Vanderberg did not request a leave of absence, approved or otherwise. As Covello explained, Vanderberg gave her employer "nothing[,]" not even "a tentative return to work date . . . ."

The Supreme Court has long since ruled that employees who are unable to report to work for personal reasons are considered to have left employment voluntarily and are therefore disqualified from unemployment benefits. See N.J.S.A. 43:21- 5(a); Self v. Bd. of Review, 91 N.J. 453, 457 (1982). The doctrine clearly applies to the facts of this case.

We therefore find that the Board's decision was not arbitrary, capricious, or unreasonable. It was supported by substantial credible evidence in the record as a whole.

Affirmed.

20120607

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