WILLIAM NORIEGA 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NOT FOR PUBLICATION WITHOUT THE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-2236-19
WILLIAM NORIEGA,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and YRC, INC.,
Respondents.
__________________________
Argued September 30, 2021 – Decided October 14, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Board of Review, Department of
Labor, Docket No. 160576.
Robert P. Altemus argued the cause for appellant.
Bryce K. Hurst, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Jana R. DiCosmo,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant William Noriega appeals from a November 25, 2019 final
decision by the Board of Review finding he was disqualified from receiving
unemployment compensation under N.J.S.A. 43:21-4(c) because he was unable
to work. We affirm.
We take the following facts from the record including three hearings
before the appeal tribunal. Noriega began working as a driver for YRC, Inc. in
2015. In November 2016, he was injured in a motor vehicle accident unrelated
to his employment. Although Noriega returned to work following the accident,
he eventually took medical leave to have shoulder surgery. His final day of
work was June 23, 2017.
Noriega began collecting disability benefits on June 29, 2017. He had a
second surgery, this time on his wrist, on November 28, 2017.
Following Noriega's June 2017 departure, YRC alleged he did not provide
updates or submit any medical documentation regarding his surgeries or
estimated return date. On December 20, 2017, YRC sent Noriega a letter, which
read as follows:
Please be advised you have failed to notify us since
your last day of work. [Your] [l]ast day of actual work
was . . . June 23. We haven't heard or received any
notice from you since then. If we don't hear from you
within [seventy-two] hours of receipt of this letter your
name will be removed immediately from [the] YRC
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Freight Carney, New Jersey Local 560 seniority list
which will result in a voluntary quit.
The letter was delivered via UPS next day air. YRC did not receive a response
to the letter and terminated Noriega effective December 20, 2017.
Noriega claimed he did not receive YRC's letter. He testified he called
his former supervisor at YRC twice between June and December 2017 to keep
him abreast of his status. Noriega conceded he did not provide any medical
records to YRC.
Noriega's doctor issued a letter dated June 18, 2018, clearing him to return
to work on June 19, 2018, subject to certain restrictions. According to the letter,
he was restricted from "frequently" lifting more than ten pounds and
"occasionally" more than twenty pounds. His doctor also noted Noriega "will
have some activity restrictions regarding the left wrist which will not allow him
to return to work as a tractor-trailer driver."
When Noriega called YRC seeking to return, his supervisor informed him
he was no longer employed. Noriega filed for unemployment compensation on
July 22, 2018. He was approved by a Deputy Director of the Division of
Unemployment and Disability Insurance. YRC appealed and following a
hearing at which a YRC representative testified, the tribunal reversed and
disqualified Noriega from receiving unemployment compensation. The tribunal
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concluded Noriega left work voluntarily without good cause attributable to the
work, N.J.S.A. 43:21-5(a), and abandoned his employment, N.J.A.C. 12:17-
9.11(b) by failing to return from leave or otherwise communicate with YRC
following his June 23, 2017 departure. He was ordered to repay $7,826 in
unemployment compensation received between July 28 and October 20, 2018.
Noriega appealed the decision, arguing he did not appear at the hearing
before the tribunal because he did not receive notice. The Board remanded the
matter to the tribunal to consider his testimony. At the subsequent hearing,
Noriega testified he had been unable to work since he first filed for
unemployment compensation.
Noriega also informed the tribunal he had another surgery for a hernia
around July 2019. The hearing was postponed allowing him to obtain medical
documents regarding the surgeries. At the third hearing, Noriega testified he
was unable to work from June 2018 through October 2018.
The tribunal found Noriega ineligible for unemployment compensation
pursuant to N.J.S.A. 43:21-4(c)(1) from July 22 through October 20, 2018,
because he was unable to work at the time he applied. Noriega appealed and the
Board affirmed the tribunal's decision.
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On this appeal, Noriega argues the Board erred in finding he was unable
to return to work after June 18, 2018. He contends the letter from his physician
was conclusive evidence of his ability to return to work and that he kept YRC
abreast of his status. He argues the Board's failure to consider this evidence was
arbitrary, capricious, and unreasonable. Noriega asserts the Board
misinterpreted the portion of his testimony where he stated he was unable to
work. He claims the context of his testimony shows he meant he was unable to
work for any employer other than YRC.
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). "If the
Board's factual findings are supported 'by sufficient credible evidence, courts
are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Rev., 91 N.J. 453, 459
(1982)). The agency's decision may not be disturbed unless shown to be
arbitrary, capricious, unreasonable or inconsistent with the applicable la w.
Ibid.; In re Warren, 117 N.J. 295, 296 (1989). Thus, "[i]n 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." Brady, 152 N.J. at 210 (quoting
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Charatan v. Bd. of Rev., 200 N.J. Super. 74, 79 (App. Div. 1985)) (alteration in
original).
A claimant is not eligible for unemployment compensation unless he or
she "is able to work, . . . available for work, and has demonstrated [they are]
actively seeking work." Ford v. Bd. of Rev., 287 N.J. Super. 281, 284 (App.
Div. 1996) (quoting N.J.S.A. 43:21-4(c)(1)). The Board considered the doctor's
letter and Noriega's testimony claiming he kept in touch with YRC.
Notwithstanding this evidence, Noriega twice conceded during his testimony
that he was unable medically to work during the period he was receiving
unemployment compensation. Our review of the record does not convince us
the Board took his testimony out of context. Therefore, he was liable to repay
the full amount of compensation received. See N.J.S.A. 43:21-16(d)(1). The
Board's decision was not arbitrary, capricious, unreasonable, or contrary to law,
and was supported by the substantial credible evidence in the record.
Affirmed.
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