August 9, 2013
MORRIS KAPLAN, Appellant,
BOARD OF REVIEW, DEPARTMENT OF LABOR, and D.M.S. SECURITY SYSTEMS, INC., Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2012
On appeal from the Board of Review, Department of Labor, 345-085.
Morris Kaplan, appellant, pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).
Respondent D.M.S. Security Systems, Inc., has not filed a brief.
Before Judges Parrillo and Messano.
Morris Kaplan appeals from the final decision of the Board of Review (the Board) that affirmed the decision of the Appeal Tribunal (the Tribunal) and denied Kaplan's application for unemployment benefits. We affirm.
The record discloses that Kaplan was employed as a security guard by D.M.S. Systems, Inc. (DMS), from November 2010 until May 2011. He applied for unemployment benefits, and the Deputy determined Kaplan was eligible for benefits without disqualification from June 12, 2011. DMS appealed, and the matter was heard by the Tribunal via telephonic argument on October 24, 2011.
Kaplan asserted that he left his employment because he was "verbally abused" by his immediate supervisor, Deretta McCarthy. Wanda Bennett, the president of DMS, testified that Kaplan "resigned on his own." McCarthy also testified that she never verbally abused Kaplan, DMS offered him a position with another client which he refused and Kaplan was "welcome to come back."
The Tribunal determined Kaplan was disqualified pursuant to N.J.S.A. 43:21-5, which provides in relevant part that an employee is ineligible for benefits if he "left work voluntarily without good cause attributable to such work . . . ." Kaplan appealed, and, on April 5, 2012, the Board issued its final decision, affirming the Tribunal's decision. This appeal ensued.
"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." Brady, supra, 152 N.J. at 210 (quotations and citations omitted); Bustard v. Bd. of Review, 401 N.J.Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.
Before us, Kaplan asserts that he left the employ of DMS "[a]s a result of the verbal abuse and health concerns." He includes in his appendix a letter from Dr. Suzanne Kabis, dated November 18, 2011, indicating Kaplan was advised against accepting the transfer to another position, at the Middlesex County Sewage Authority treatment plant, because of "the risk of potentially toxic bacteria." Kabis further explained that Kaplan's wife was receiving chemotherapy treatment for cancer, and she was "at particular risk of any infection which could be fatal" if transmitted by Kaplan.
N.J.S.A. 43:21-5(a) provides that "[a]n individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." "In applying [N.J.S.A.] 43:21-5(a), a court must 'differentiate between (1) a voluntary quit with good cause attributable to the work and (2) a voluntary quit without good cause attributable to the work.'" Brady, supra, 152 N.J. at 213-14 (quoting Self v. Bd. of Review, 91 N.J. 453, 457 (1982)). The Court has stated:
The test of ordinary common sense and prudence must be utilized to determine whether an employee's decision to leave work constitutes good cause. Such cause must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed.
[Brady, supra, 152 N.J. at 214 (quotations and citations omitted.] The claimant bears the burden of proving good cause. Id . at 218.
Clearly, on the record adduced before the Tribunal and the Board, Kaplan failed to establish entitlement to the benefits. The Board's conclusion was reached after assessing the credibility of the witnesses who testified and consequently is entitled to our deference See Logan v Bd of Review 2 99 N.J. Super 346 348 (App Div 1997) ("The appellate court must also give due regard to the opportunity of the one who heard the witnesses to judge their credibility") (citation omitted)
As noted Kaplan never asserted a medical reason for refusing to accept another assignment Generally speaking we will not consider an issue raised for the first time on appeal when the appellant had ability to raise the issue before the trial court or agency Nieder v. Royal Indem Ins Co 62 N.J. 229 234 (1973) Moreover "[w]hen an individual leaves work for health or medical reasons medical certification shall be required to support a finding of good cause attributable to [such] work" NJAC 12:17-93 Absent such unequivocal medical evidence the employee's decision to terminate his employment is deemed to be without good cause attributable to the work Wojcik v. Bd of Review 58 N.J. 341 344 (1971)
Here the only evidence offered is an uncertified letter from Kabis that unquestionably fails to meet the standard of proof We affirm the denial of benefits for the reasons expressed by the Board which were supported by substantial credible evidence in the record R 2:11-3(e)(1)(D)