MICHAEL BARNEY VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3221-19
MICHAEL BARNEY,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and TLJ RECYCLING &
CONTAINER SERVICE, LLC,
Respondents.
___________________________
Submitted April 14, 2021 – Decided May 12, 2021
Before Judges Fuentes and Rose
On appeal from Board of Review, Department of Labor,
Docket No. 203,078.
Karpf, Karpf & Cerutti, PC, attorneys for appellant
(Allison A. Barker, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Sookie Bae-Park,
Assistant Attorney General, of counsel; Dipti Vaid
Dedhia, Deputy Attorney General, on the brief).
PER CURIAM
Claimant Michael Barney appeals from a March 5, 2020 final decision of
the Board of Review, disqualifying him from receiving unemployment benefits
under N.J.S.A. 43:21-5(a) because he left his employment without good cause
attributable to the work. We affirm.
We summarize the facts from the January 30, 2020 hearing before the
Appeal Tribunal, at which Barney and his employer's office manager
participated. Barney was employed as a truck driver by TLJ Recycling &
Container Service, LLC from May 2016 through December 22, 2019. About
one month before he left TLJ's employment, Barney told his supervisor he "was
dealing with some . . . long term pain in [his] lower back." Barney said he "was
thinking about taking off [during the ensuing] winter" to explore different
methods of self-treatment, including a ninety-day exercise program. Barney
intended "to continue with the company . . . in the spring" but "there was [no]
agreed upon date that [he] would return."
Barney acknowledged, however, that he was "[n]ever told by a doctor to
take a few months off from the job" or that exercise would improve his
condition. He also told the appeals examiner that "as of December 27[,]" he was
"physically able to work." But Barney wanted to refrain from driving trucks
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"for a little bit . . . to see what not driving for a while would do on [his] lower
back." He said his condition worsened during the "colder months" but did not
recall whether he told his supervisor that the pain increased during that time of
year. Barney first sought attention for his lumbar spine pain around 2010; he
never filed a disability claim because he was usually able to "work through" the
pain.
Although Barney speculated that driving different vehicles could have
made his condition worse, Barney did not request an accommodation from his
employer. When asked whether he was "aware of any . . . possible
accommodation [his] employer could offer," Barney replied: "I did not even
look into it. . . . I probably should have. I just didn't want to come off as . . . it
was just a personal thing for me. . . . I didn't want to ask for . . . help in a sense."
The office manager confirmed Barney did not request an accommodation,
adding that there were no non-driving positions at TLJ, and the company could
not "guarantee" their drivers were "always gonna be in the same vehicle."
Barney provided a January 28, 2020 report of his chiropractor, which
summarized Barney's complaints and the doctor's testing and findings. Absent
from the report is any indication that Barney suffered from lower lumbar pain –
or any medical condition – that prevented him from continuing his employment.
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Barney had not provided his employer with such medical documentation before
he left the job.
Following the hearing, the Appeal Tribunal issued a written decision on
February 3, 2020, affirming the determination of the Deputy Director of
Unemployment Insurance that disqualified Barney from receiving
unemployment benefits. Citing N.J.A.C. 12:17-9.3, the decision explained that
Barney, who argued he left work due to a medical condition, "was not told by a
doctor that his condition was caused or aggravated by the job and he was not
advised to leave the job." Instead, Barney "left the job because he wanted to
take the winter months off to seek alternative treatment methods for his back
pain." In reaching its decision, the Appeal Tribunal noted Barney "sought
medical care for treatment, but did not file for disability." The decision also
noted Barney's "job was not in jeopardy." Accordingly, the Appeal Tribunal
concluded Barney was disqualified for benefits under N.J.S.A. 43:21-5(a).
On March 5, 2020, the Board adopted the Appeal Tribunal's decision. This
appeal followed.
On appeal, Barney argues the Board's decision "was unreasonable and an
error of law as he left work voluntarily with good cause attributable to work."
More particularly, Barney contends he "left his job due to a pre-existing health
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condition that was aggravated by his working conditions, and the employer was
not able to accommodate him, nor were there alternative jobs available." To
support his contentions, Barney relies on his testimony that he suffers from
chronic back pain and his statements to his chiropractor relating his ailment.
The scope of our review of an administrative agency's final determination
is strictly limited. Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997). The agency's
decision may not be disturbed unless shown to be arbitrary, capricious, or
unreasonable or inconsistent with the applicable law. Ibid.; In re Warren, 117
N.J. 295, 296 (1989). "If the Board's factual findings are supported 'by sufficient
credible evidence, courts are obliged to accept them.'" Brady, 152 N.J. at 210(quoting Self v. Bd. of Rev., 91 N.J. 453, 459 (1982)). Accordingly, "in
reviewing the factual findings made in an unemployment compensation
proceeding, the 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." Ibid. (internal
quotation marks omitted).
In our review, we also "give due regard to . . . the agency's expertise where
such expertise is a pertinent factor." Clowes v. Terminix Int'l, Inc., 109 N.J.
575, 587 (1988) (internal quotation marks omitted). "However, '[i]n an appeal
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from a final agency decision, an appellate court is in no way bound by the
agency's interpretation of a statute or its determination of a strictly legal issue.' "
Melnyk v. Bd. of Educ. of Delsea Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020)
(quoting Ardan v. Bd. of Rev., 231 N.J. 589, 604 (2018)).
Applying these principles, we find no error in the Board's decision to deny
benefits. To avoid disqualification, Barney had the burden of establishing he
left work for "good cause attributable to work." Brady, 152 N.J. at 218; see also
N.J.S.A. 43:21-5(a) (providing an employee who "has left work voluntarily
without good cause attributable to such work" is disqualified for unemployment
compensation benefits). "Good cause attributable to such work" is defined in
N.J.A.C. 12:17-9.1(b) as "a reason related directly to the individual's
employment, which was so compelling as to give the individual no choice but to
leave the employment." An employee has left work "voluntarily" within the
meaning of the statute "only if 'the decision whether to go or to stay lay at the
time with the worker alone.'" Lord v. Bd. of Rev., 425 N.J. Super. 187, 191
(App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Rev., 13 N.J. 431, 435
(1953)). Accordingly, an employee who quits a job without a sufficient work-
related reason is disqualified from receiving benefits. Self, 91 N.J. at 457.
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Although a claimant who leaves work for a valid but otherwise personal
reason is subject to disqualification, see Morgan v. Bd. of Rev., 77 N.J. Super.
209, 214 (App. Div. 1962), there is a "recognized exception to that rule . . .
where an employee is unable to work because of illness and attempts to protect
[his] employment." Self, 91 N.J. at 457; see also Ardan, 231 N.J. at 605. Where
health prevents an employee from working, it is the employee's obligation to
establish through competent medical evidence that a health issue attributable to
work forced him to leave employment. See Wojcik v. Bd. of Rev., 58 N.J. 341,
344 (1971); see also N.J.A.C. 12:17-9.3(d) (providing "[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 work.").
Further, when a non-work connected physical condition makes it
necessary for an individual to leave work due to an inability to perform the job,
the individual shall be disqualified for benefits for voluntarily leaving work,
unless the work is medically proven to aggravate the condition. N.J.A.C. 12:17-
9.3(b)1 Therefore, a claimant "is not required to show . . . that [his] illness was
1
N.J.A.C. 12:17-9.3(b) provides:
An individual who leaves a job due to a physical
and/or mental condition or state of health which does
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caused by [his] job or that it prevents [him] from performing the duties of [his]
employment. [He] is only required to show that the environment at [his] job
aggravated [his] illness or will impair [his] continued recovery." Israel v. Bally's
Park Place, Inc., 283 N.J. Super. 1, 5 (App. Div. 1995). "[He can meet] that
standard by showing, through uncontroverted medical evidence, that [his
condition] has been and will be aggravated by the [work] environment." Ibid.The claimant is required to establish an aggravation by supplying a medical
certification supporting the claim that the work aggravated the condition.
N.J.A.C. 12:17-9.3(d); see also Israel, 283 N.J. Super. at 5.
In addition to establishing that he suffers from the aggravation of a
medical condition, the claimant must prove "at the time of the claimant's
departure, either the employer had no position available that would
not have a work-connected origin but is aggravated by
working conditions will not be disqualified for benefits
for voluntarily leaving work without good cause
"attributable to such work," provided there was no other
suitable work available which the individual could have
performed within the limits of the disability. When a
non-work connected physical and/or mental condition
makes it necessary for an individual to leave work due
to an inability to perform the job, the individual shall
be disqualified for benefits for voluntarily leaving
work.
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accommodate the claimant's condition or the claimant would not have been
assigned to any such position." Ardan v. Bd. of Rev., 231 N.J. 589, 607 (2018).
In Ardan, the Court held an employee is not always required to notify the
employer of his medical condition before leaving a position as permitte d by
N.J.A.C. 12:17-9.3(b), and may not be required in every case to inquire as to
whether the employer will accommodate the limitations imposed on the
employee by that condition. Id. at 605. The Court nonetheless determined the
Board "properly found that Ardan failed to meet her burden to demonstrate her
case [wa]s within the exception prescribed by N.J.A.C. 12:17-9.3(b)." Id. at
608. In reaching its decision, the Court noted the record did not support the
claimant's "conclusory assertion that any effort to secure a reassignment to
'suitable work' at [her job] would have proven futile." Id. at 607. Notably,
Ardan's medical records "indicat[ed] her condition was permanent and her pain
made it difficult for her to do her job." Id. at 597.
Conversely, in the present matter, Barney failed to offer any competent
medical evidence that established his lumbar pain prevented him from
performing his work. Nor did Barney produce any medical evidence that his
work caused his or aggravated his back pain. Rather, Barney testified he was
"physically able to work" on the day he left TLJ's employment. Barney's
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reliance on his complaints as reflected in his chiropractor's medical reports falls
far short of meeting that burden. Without competent medical evidence, Barney
failed to meet his burden. See N.J.A.C. 12:17-9.3(d).
Moreover, Barney acknowledged he did not seek an accommodation from
TLJ or provide any medical documentation that would support his belated
argument that he placed his employer "on notice" he was seeking an
accommodation for a disability. We reject Barney's speculative argument that
"TLJ could not accommodate . . . [him] by ensuring he only drove one of the
newer, more proportionate trucks that were better on his lumbar spine." TLJ's
office manager only generally testified the company could not "guarantee" that
a particular vehicle "always" would be available. But Barney never made that
request. Similar to the claimant in Ardan, Barney did not establish that his
"conclusory assertion" that a request for another assignment "would have proven
futile." 231 N.J. at 607. Indeed, Barney did not even attempt to determine what
those other opportunities were.
We therefore conclude the Board's decision was not arbitrary, capricious
or unreasonable as there was no medical evidence to support Barney's
contentions, and he failed to otherwise meet his burden to establish there was no
other work available for him.
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Affirmed.
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