BRENDA PARKER VS. BOARD OF REVIEW(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NOT FOR PUBLICATION WITHOUT THE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-0215-16T2
BRENDA PARKER,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT, and MATRIX
PERSONNEL1 SOLUTIONS, INC.,
Respondents.
_________________________________
Submitted October 23, 2017 – Decided November 2, 2017
Before Judges Sabatino and Rose.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
080,028.
Brenda Parker, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Arundhati Mohankumar, Deputy
Attorney General, on the brief).
Respondent Matrix Personnel Solutions, Inc.
has not filed a brief.
1
The record at times spells this "Personel."
PER CURIAM
Appellant Brenda Parker ("claimant") seeks reversal of the
Board of Review's August 29, 2016 final agency decision rejecting
her claim for unemployment benefits. Applying the required
deference owed to the Board within its area of expertise, we
affirm.
Claimant was employed as a housekeeper for Matrix Personnel
Solutions, Inc. ("Matrix"), a company which has not participated
in this appeal. She contends that while working at Matrix, she
aggravated various medical conditions, including bursitis in her
left shoulder and triggering in her right thumb. Claimant received
treatment and was excused from work for two days by her treating
doctor, Dr. Venkata Jonna, but was found otherwise able to return
to work with no restrictions. About a month later, her symptoms
worsened.
On November 15, 2015, claimant sent a letter of resignation
to her employer's management, stating that she needed to resign
because certain job duties such as mopping, vacuuming, and sweeping
worsened and aggravated the arthritis in her hand. She indicated
in the letter that she was giving the employer two weeks' notice
and that she would be willing to return to work if she could be
relieved of those specific duties. The employer's manager said
he would check with the personnel department, but failed to get
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back to her. Claimant did not follow up further on the subject
and did not return to work.
Claimant applied for unemployment benefits. The Deputy
Director denied her claim upon finding she had left work
voluntarily without good cause attributable to the work. Claimant
challenged that decision. The Appeal Tribunal conducted an initial
hearing in February 2016, at which time claimant testified and a
Human Resources representative from Matrix also appeared.
Following that hearing, the Appeal Tribunal concluded in its
initial February 16, 2016 decision that claimant was disqualified
for benefits. Thereafter, the Board of Review remanded the matter
back to the Appeal Tribunal for an additional hearing.
The second hearing before the Appeal Tribunal was held on May
24, 2016. This time the employer did not appear. Claimant and
her then-attorney appeared, but did not present any live medical
testimony. Claimant and her counsel did present her medical
records, as well as materials from various medical websites, which
claimant relied upon to support her claim of medical aggravation
and her alleged need for a reasonable accommodation.
Following the second hearing, the Appeal Tribunal again
rejected claimant's claim, concluding on remand that her
resignation from her job was "based on a personal assessment of
her conditions." The Appeal Tribunal found specifically that
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claimant did not "explore her treatment options, or vigorously
pursue a solution from the employer in [an] effort to protect her
job before tendering her resignation." In addition, the Appeal
Tribunal noted that "general medical information obtained from the
internet is not a substitute for a medical certification from a
doctor."
Claimant again filed an administrative appeal with the Board
of Review. This time she presented a certification from a Dr.
Lori C. Talbot, a Board-certified family practice physician. Dr.
Talbot had not examined claimant, but had reviewed her records.
Dr. Talbot opined that claimant's medical conditions "are
consistent with conditions which can be seriously aggravated by
work;" that "the work of a housekeeper is consistent with the type
of work which could aggravate subacromial bursitis and trigger
finger;" and that the medical website information she submitted
is "consistent with and accurately describes these conditions and
their potential aggravation through work and other activities."
Dr. Talbot added that claimant's situation "is consistent with the
type . . . appropriate from an individual experiencing severe
health effects, but wanting accommodation in order to prevent
further health damage."
In its second final agency decision dated August 29, 2016,
the Board of Review upheld the continued denial of benefits to
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claimant. The Board noted that claimant had been given a full and
impartial hearing with the complete opportunity to offer any and
all evidence, and that there was no valid ground for a further
hearing.
On appeal, claimant argues: (1) her medical conditions meet
the tests for substantial aggravation of her health problems and
that she therefore should be awarded benefits; (2) her unfulfilled
request to her employer for a reasonable accommodation, and the
lack of an interactive process to explore such an accommodation,
evidences an "unhealthful condition" that violates the law and
provides good cause for her termination of employment; (3) she was
denied due process by the agency; (4) an adverse inference should
be made against her employer because it did not provide competing
testimony; and (5) there is substantial and allegedly unrefuted
evidence in her favor.
In considering these arguments contesting the Board's final
agency decision, we are guided by well-established principles.
When reviewing appeals involving unemployment benefits, we accord
particular deference to the expertise of the Board of Review, and
its repeated construction and application of Title 43. See, e.g.,
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd.
of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). "'[I]n
reviewing the factual findings made in an unemployment
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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.'" Brady, supra, 152 N.J. at 210 (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.'" Ibid.
(quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982); Goodman
v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981)). Our
courts also give due regard to the agency's credibility findings.
Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997)
(citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). Unless
the agency's action "was arbitrary, capricious, or unreasonable,
the agency's ruling should not be disturbed." Brady, supra, 152
N.J. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)).
With these governing principles of deference in mind, we turn
to the merits of claimant's appeal. The central substantive issue
is whether claimant is disqualified for unemployment benefits
because she left her position "voluntarily without good cause
attributable to such work[.]" N.J.S.A. 43:21-5(a). Personal
reasons for termination of employment, no matter how compelling
they may be, do not comprise "good cause" under the unemployment
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statutes for resignation. Utley v. Bd. of Review, 194 N.J. 534,
544 (2008). A claimant maintains the burden of proof to establish
such good cause attributable to the work. N.J.A.C. 12:17-19.1(c).
The pertinent regulations specify that "[w]hen an individual
leaves work for health or medical reasons, [a] medical
certification shall be required to support a finding of good cause
attributable to the work." N.J.A.C. 12:17-9.3(d). In addition,
a claimant "who leaves a job due to a physical and/or mental
condition or state of health which does not have a work-connected
origin but is aggravated by working conditions will not be
disqualified for benefits . . . provided there was no other
suitable work available which the [claimant] could have performed
within the limits of the disability." N.J.A.C. 12:17-9.3(b).
A pivotal issue in applying these laws and regulations is the
claimant's medical condition at the time the claimant submits a
letter of resignation. Combs v. Bd. of Review, 269 N.J. Super.
616, 624 (App. Div. 1994). The medical proofs must demonstrate
that working conditions caused the claimant to suffer medical
problems to such an extent as to make resignation medically
necessary. See Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971).
Here, the Appeal Tribunal and the Board reasonably concluded
that claimant failed to sustain her burden of proving, at the two
hearings, medical necessity to resign. The record shows that
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prior to resigning from Matrix, claimant was evaluated and treated
by Dr. Jonna. Significantly, in her record dated September 28,
2015, Dr. Jonna excused claimant from work for two days due to
trigger finger and shoulder bursitis, but further indicated the
claimant could return to work soon thereafter on October 5. In
her accompanying narrative report, Dr. Jonna described the
conditions and the steroid injections she administered to
claimant, but noted no future work restrictions for her beyond the
two-day period. Given this information, Matrix had no duty to
provide claimant with a medical accommodation scaling back her
duties, or to render a decision on the request within the short
period of time demanded in claimant's resignation letter.
In addition, after claimant resigned in November 2015, Dr.
Jonna authored a follow-up record on May 2, 2016 stating claimant
had recovered from her trigger finger and bursitis conditions, and
that she "can return to work with no restrictions effective
immediately." This follow-up record undercuts claimant's position
that she was unable to obtain and perform other employment
following her resignation.
We recognize that plaintiff's narrative testimony before the
Appeal Tribunal recounted how she had been informed orally by Dr.
Jonna that her condition would worsen if she continued to work as
a housekeeper, and might require surgery. However, those alleged
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statements by Dr. Jonna are not corroborated by the documentary
record. As the finder of fact, the Appeal Tribunal was entitled
to give little or no credence to claimant's representations about
the doctor's hearsay statements.
We agree further with the agency that the Appeal Tribunal was
justified in giving little or no weight to medical website
materials that claimant printed out from the Internet. At best,
those website materials are merely generic in nature and do not
rise to the evidential level of a competent diagnosis or prognosis
by a licensed physician who had examined the patient.
Nor was the agency required to award benefits to claimant
based on the certification she submitted from Dr. Talbot in August
2016 following her loss at the second hearing. The certification
was submitted belatedly after claimant had a fair opportunity to
present evidence at two hearings before the Appeal Tribunal and
prior to the record's close. Moreover, Dr. Talbot never examined
claimant, and only performed a "paper review" of her records. In
essence, Dr. Talbot's certification was simply too little and too
late to aid claimant.
The balance of claimant's arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(D) and (E).
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Affirmed.
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