TINA ZIPPIN VS. BOARD OF REVIEWÂ (BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCEDEVELOPMENT) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2226-15T1
TINA ZIPPIN,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR and JUST HOME, INC.,
Respondents.
___________________________________
Argued March 21, 2017 – Decided November 27, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
043,777.
Richard J. Bennett argued the cause for
appellant (Central Jersey Legal Services,
Inc., attorneys; Mr. Bennett, on the brief).
Adam K. Phelps, Deputy Attorney General,
argued the cause for respondent Board of
Review (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Mr.
Phelps, on the brief).
Respondent Just Home, Inc. has not filed a
brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
Tina Zippin appeals from the decision of the Board of Review,
denying her unemployment benefits because she left her job
voluntarily, without good cause attributable to work. We affirm.
Many of the facts are undisputed. Tina Zippin was working
as an aide for an adult day care facility, Just Home, Inc., when
her mental health condition prevented her from continuing. She
stated that a change in her medication was the cause. Her
supervisor referred her to a nurse practitioner who concluded she
was unable to work, and recommended that Zippin apply for short
term disability (which she never did).
Zippin did not communicate with her employer for the next
three weeks. Her employer tried without success to reach her by
telephone to learn the status of her recovery. Absent any word,
her supervisor wrote a letter to Zippin stating:
As of today, you did not contact us to give
us [an] update on your situation or to give
us a date when you will be able to return to
work. We were trying to reach you after our
last conversation [three weeks ago] with no
result.
Because of all the above, I am assuming that
you have abounded [sic]1 your position in Just
Home as a Direct Aid.
1
The parties do not dispute that the author meant to write
"abandoned."
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Please feel free to contact me should you have
any questions/concerns.
The letter was sent certified mail, with return receipt requested.
Shortly thereafter, Just Home mailed to Zippin her personal
belongings that she left at the workplace.
Zippin testified she was too disabled to communicate with her
employer. She signed for the letter three weeks after it was
mailed. She said she was hospitalized for ten days during that
period. Shortly after she received the letter, Zippin stopped by
her employer's place of business. She inquired about returning
to work, but admitted that she was not then able to do so, as she
was still receiving intensive out-patient treatment. She was told
she would need to present medical proof that she was able to work.
Zippin understood that she would be able to return when she was
well enough. Yet, she never presented herself to her employer as
willing and able to return to work, nor did she provide required
medical documentation.
Instead, less than three months after her last day of work,
she applied for unemployment insurance. The deputy denied her
benefits. At her Appeal Tribunal hearing five months after her
last day of work, she conceded she was not ready to work, because
she was still in treatment three days a week. Her employer's
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representative testified that Zippin could return to work if she
provided the necessary medical proof.
The Tribunal reversed the deputy's decision, finding that the
employer terminated her employment by its letter stating it assumed
she abandoned her job. The Board reversed, concluding the letter
did not terminate Zippin; rather, "[i]t told [Zippin] that the
employer considered that she abandoned her job and [she] could
contact them." Furthermore, Zippin "never attempted to return to
work or contact the employer . . . . [She] left her job voluntarily
and did so without good cause attributable to the work."
On appeal, Zippin contends she was entitled to benefits as
she left work because of illness, and then her employer terminated
her by way of the letter quoted above. We are unpersuaded.
Well-settled principles guide our analysis. A person is
generally disqualified from receiving unemployment benefits if he
or she "has left work voluntarily without good cause attributable
to such work . . . ." N.J.S.A. 43:21-5(a). A person is deemed
to have done so when he or she leaves work because of a health
condition that is not work-related but disables the person from
returning. N.J.A.C. 12:17-9.3(b) ("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,
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the individual shall be disqualified for benefits for voluntarily
leaving work.").
Even if a worker does not expressly say, "I quit," an employer
may conclude the worker has abandoned work if he or she is "absent
from work for five or more consecutive work days and . . . without
good cause fails to notify the employer of the reasons for his or
her absence . . . ." N.J.A.C. 12:17-9.11. "Good cause" for not
communicating with the employer "means any situation over which
the claimant did not have control and which was so compelling as
to prevent the employee from notifying the employer of the
absence." Ibid. An abandoned job is treated as voluntarily
leaving work without good cause attributable to work. Ibid.
However, the worker is not deemed to have voluntarily quit
work if he or she leaves work due to illness — intending to return
— and makes a reasonable effort to preserve his or her job, but
the employer refuses to allow the worker to return and terminates
employment. N.J.A.C. 12:17-9.3(c) ("[A]n individual who has been
absent because of a personal illness or physical and/or mental
condition shall not be subject to disqualification for voluntarily
leaving work if the individual has made a reasonable effort to
preserve his or her employment, but has still been terminated by
the employer.") (emphasis added).
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We exercise a limited review of the Board's decision. Brady
v. Bd. of Review, 152 N.J. 197, 210 (1997). The critical question
here is whether Just Home terminated Zippin by way of its certified
letter. We defer to the Board's factual finding that it did not,
as the Board relied on sufficient credible evidence in the record.
See Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197
N.J. 339, 367 (2009).
First, by its express terms, the letter did not terminate
Zippin. Rather, in view of Zippin's lack of communication for
three weeks, the employer understandably stated that it assumed
she abandoned her position. Zippin was invited to contact the
employer with questions or concerns. So, if she did not intend
to abandon her job, she could have corrected her employer's
impression. Zippin apparently did just that, when she visited her
workplace after receiving the letter.
Second, as further evidence that Just Home did not intend to
terminate Zippin, a supervisor told Zippin when she visited the
workplace that she could return to work upon proof she was
medically fit. Even at the Appeal Tribunal hearing months later,
that remained the employer's position.
We recognize that Zippin contends she was too disabled to
communicate with her employer until she was released from the
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hospital, over a month after she left work.2 In other words, she
claims she had good cause for not communicating, and therefore had
not, in fact, abandoned her job. N.J.A.C. 12:17-9.11. However,
we need not resolve that question. Nor need we resolve whether
she made a "reasonable effort to preserve her employment."
N.J.A.C. 12:17-9.3(c). Those facts would be important if Just
Home terminated her, or refused to reinstate her upon her request.
Cf. De Lorenzo v. Bd. of Review, 54 N.J. 361, 364 (1969) (affirming
Board's conclusion that an employee is entitled to benefits "when
an employee becomes ill and does those things reasonably calculated
to protect the employment and, notwithstanding that she is not
reinstated, there is no voluntary leaving of work" (emphasis
added)).
Notwithstanding its letter, Just Home did not terminate
Zippin, or refuse her return. When she visited the workplace
after receiving the letter, Zippin understood that a job was still
available if she could prove she was able. But she was not. Even
months later, at the Appeal Tribunal hearing, Just Home's
2
We also recognize that the Board's statement that she "never
attempted to . . . contact the employer" is contrary to the
undisputed evidence that Zippin visited the employer, albeit three
weeks after the letter was sent, and six weeks after she left work
because of illness.
7 A-2226-15T1
representative said a job remained available, but Zippin was not
ready.
In sum, whether Zippin had abandoned her work, or remained
out for reasons of illness and had taken reasonable steps to
preserve her job, she was still not entitled to benefits because
she was neither terminated, nor denied reinstatement by her
employer.
Affirmed.
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