Margo S. Ardan v. Board of Review, Lourdes Medical Center of Burlington County, Inc., and Alliance Healthcare

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5826-13T2
MARGO S. ARDAN,
APPROVED FOR PUBLICATION
Appellant,
April 25, 2016
v.
APPELLATE DIVISION
BOARD OF REVIEW, LOURDES
MEDICAL CENTER OF BURLINGTON
COUNTY, INC., and ALLIANCE
HEALTHCARE,
Respondents.
_________________________________
Argued March 7, 2016 – Decided April 25, 2016
Before Judges Simonelli, Carroll and
Sumners.
On appeal from the Board of Review,
Department of Labor and Workforce
Development, Docket No. 412,283.
Keith Talbot argued the cause for appellant
(Legal Services of New Jersey, attorneys;
Mr. Talbot, on the briefs).
Christopher M. Kurek, Deputy Attorney
General, argued the cause for respondent
Board of Review (John J. Hoffman, Acting
Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of
counsel; Mr. Kurek, on the brief).
Cindy Perr, Associate General Counsel,
argued the cause for respondent Lourdes
Medical Center of Burlington County, Inc.
(Jennifer L. Schwartz, Vice President Legal
Affairs & General Counsel, attorney, joins
in the brief of respondent Board of Review).
Respondent Alliance Healthcare has not filed
a brief.
The opinion of the court was delivered by
SIMONELLI, J.A.D.
Appellant Margo S. Ardan appeals from the December 13, 2013
final decision of respondent Board of Review (Board), which
affirmed the September 26, 2013 decision of the Appeal Tribunal
that Ardan was disqualified from receiving benefits pursuant to
N.J.S.A. 43:21-5(a) because she left her employment at
respondent Lourdes Medical Center of Burlington County, Inc.
(Lourdes) without good cause attributable to the work. On
appeal, Ardan contends that she had medical good cause to leave
her employment with Lourdes; an amendment to N.J.S.A. 43:21-
5(a), which should be applied retroactively, permitted her to
leave her employment for equal or better employment elsewhere;
and the Board failed to make adequate factual findings. We
reject these contentions, and affirm.
We derive the following facts from the record. Ardan was
employed by Lourdes as a registered nurse from September 7,
2010, until she resigned on November 7, 2012. Before resigning,
Ardan found a "desk job" at Alliance Healthcare (Alliance) that
was less physically demanding and provided better work hours and
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comparable pay. In her resignation letter to Lourdes, Ardan
said she was leaving "to seek other opportunity." She never
mentioned having any medical condition that affected her ability
to work, nor did she request an accommodation.
On November 12, 2012, Ardan began working for Alliance as a
healthcare communicator. She was separated from that job after
seven weeks because she could not pass a certification test.
She filed a claim for unemployment benefits on December 23,
2012.
On January 28, 2013, the Deputy Director of the Division of
Unemployment and Disability Insurance determined that Ardan was
disqualified for benefits as of November 4, 2012, because she
left work at Lourdes voluntarily without good cause attributable
to the work. The Deputy Director also determined that the seven
weeks Ardan worked and wages she earned at Alliance were
insufficient to remove the disqualification.
Ardan appealed to the Appeal Tribunal. At a hearing, Ardan
never mentioned any medical condition that affected her ability
to work at Lourdes. Rather, she testified that she left that
job because she was forty-nine years old, was running around for
twelve hour shifts, and the job "just got too difficult." In a
February 25, 2013 decision, the Appeal Tribunal determined that
Ardan left work at Lourdes for employment with Alliance and was
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disqualified for benefits under N.J.S.A. 43:21-5(a) as of
November 4, 2012, because she left work voluntarily without good
cause attributable to the work.
Ardan appealed to the Board, claiming for the first time
that she left Lourdes due to a non-work connected medical
condition that was aggravated by her working conditions. She
submitted medical documentation supporting her claim, including
a report from her treating chiropractor that was dated after the
Appeal Tribunal's February 25, 2013 decision. She also
submitted medical records, which showed she had significant
problems with her neck, lower back and left knee that pre-dated
her employment with Lourdes. Ardan also claimed for the first
time that there was no other suitable work available at Lourdes.
In an August 16, 2013 decision, the Board remanded the
matter to the Appeal Tribunal for a new hearing and decision on
all issues. At the hearing, Ardan admitted that she never
advised Lourdes of her medical condition or provided Lourdes
with any medical documentation. She also admitted that she
never requested an accommodation or leave of absence, but
testified, with no documentary support, that there was no other
suitable work available at Lourdes.
In a September 26, 2013 decision, the Appeal Tribunal found
that Ardan: (1) left work at Lourdes to accept employment with
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another employer; (2) left work at Lourdes because of a physical
condition personal to her that was not work-connected and made
it necessary for her to leave her job due to an inability to
perform the job; (3) never informed Lourdes she was leaving for
medical reasons; (4) never requested a leave of absence,
accommodation, or change in duties or schedule; and (5) never
afforded Lourdes an opportunity to make changes to her schedule
and/or duties to accommodate her medical condition.
Accordingly, the Appeal Tribunal concluded that Ardan was
disqualified for benefits under N.J.S.A. 43:21-5(a) and N.J.A.C.
12:17-9.1(e)(9) as of November 4, 2012, because she left work at
Lourdes voluntarily without good cause attributable to the work.
Ardan appealed to the Board. The Board reviewed the record
and, in a December 13, 2013 final decision, affirmed for the
reasons expressed by the Appeal Tribunal. This appeal followed.
Our review of an administrative agency decision is limited.
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "In 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)) (alteration omitted). "If the
5 A-5826-13T2
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)). We also give
due regard to the agency's credibility findings. Logan v. Bd.
of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "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.
Moreover, we "should give considerable weight to a state
agency's interpretation of a statutory scheme that the
legislature has entrusted to the agency to administer." In re
Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J.
254, 262 (2010). "We will defer to an agency's interpretation
of both a statute and implementing regulation, within the sphere
of the agency's authority, unless the interpretation is 'plainly
unreasonable.'" Ibid. However, we are "not bound by an
agency's interpretation of a statute or its determination of a
strictly legal issue[.]" Lavezzi v. State, 219 N.J. 163, 172
(2014) (alteration omitted) (citation omitted). "Thus, to the
extent [the agency's] determination constitutes a legal
conclusion, we review it de novo." Ibid.
An individual is disqualified for unemployment benefits:
For the week in which the individual has
left work voluntarily without good cause
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attributable to such work, and for each week
thereafter until the individual becomes
reemployed and works eight weeks in
employment[.]
[N.J.S.A. 43:21-5(a).]
An employee who has left work voluntarily bears the burden
of proving that he or she "did so with good cause attributable
to work." Brady, supra, 152 N.J. at 218 (citation omitted);
N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good
cause,' our courts have construed the statute to mean 'cause
sufficient to justify an employee's voluntarily leaving the
ranks of the employed and joining the ranks of the unemployed.'"
Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div.
1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174
(App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause
attributable to such work" 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 who leaves work for good, but personal, reasons
is not deemed to have left work voluntarily with good cause.
Brady, supra, 152 N.J. at 213. Thus, a claimant who leaves work
for good, but personal, reasons is subject to disqualification
under N.J.S.A. 43:21-5(a). Morgan v. Bd. of Review, 77 N.J.
Super. 209, 214 (App. Div. 1962). There is a limited exception
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to this general rule under N.J.A.C. 12:17-9.3(b), which provides
as follows, in pertinent part:
An individual 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 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.
An employee who is unable to work because of illness and "makes
an attempt to protect his or her employment" is not deemed to
have voluntarily quit without good cause attributable to the
work. Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 376
(1989) (citing Self, supra, 91 N.J. at 457; DeLorenzo v. Bd. of
Review, 54 N.J. 361, 363 (1969)).
Although Ardan's medical evidence showed she was unable to
work at Lourdes due to a non-work connected medical condition
that was aggravated by her working conditions, she made no
attempt whatsoever to protect her employment. She never
notified Lourdes of her medical condition, nor did she submit
any medical documentation or request an accommodation. Instead,
she resigned, merely advising Lourdes that she was leaving "to
seek other opportunity" and depriving Lourdes of the opportunity
to address the matter and determine if there was an
8 A-5826-13T2
accommodation. Ardan's self-serving testimony was insufficient
to establish there was no other suitable work available.
We conclude that the Board reasonably interpreted N.J.A.C.
12:17-9.3(b) to require an employee to notify an employer of a
medical condition that was aggravated by the working conditions,
request an accommodation, and afford the employer an opportunity
to address the matter to determine whether there was other
suitable work available. Ardan's failure to do so disqualifies
her for benefits under N.J.S.A. 43:21-5(a) because she left work
voluntarily without good cause attributable to the work.
Ardan was also disqualified for benefits under N.J.A.C.
12:17-9.1(e)(9), which provides that an individual who leaves
work "[t]o accept other work" is deemed to have left work
voluntarily without good cause attributable to the work. We
reject Arden's argument that the following amendment to N.J.S.A.
43:21-5(a)1 should be applied retroactively:
This subsection shall not apply to an
individual who voluntarily leaves work with
one employer to accept from another employer
employment which commences not more than
seven days after the individual leaves
employment with the first employer, if the
employment with the second employer has
weekly hours or pay not less than the hours
1
This amendment to N.J.S.A. 43:21-5(a) became effective May 4,
2015, nearly one and one-half years after the Board's final
decision in this matter.
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or pay of the employment of the first
employer[.][2]
Generally, the law favors prospective, rather than
retroactive, application of new legislation unless a recognized
exception applies. James v. N.J. Mfrs. Ins. Co., 216 N.J. 552,
556 (2014). "The preference for prospective application of new
legislation 'is based on [the Court's] long-held notions of
fairness and due process.'" Id. at 563 (quoting Cruz v. Cent.
Jersey Landscaping, Inc., 195 N.J. 33, 45 (2008)).
Courts must apply a two-part test to determine whether a
statute should be applied retroactively: (1) whether the
Legislature intended to give the statute retroactive
application; and (2) whether retroactive application "will
result in either an unconstitutional interference with vested
rights or a manifest injustice." Ibid. (quoting In re D.C., 146
N.J. 31, 50 (1996) (quoting Phillips v. Curiale, 128 N.J. 608,
617 (1992))).
2
To support her argument that we should apply the amendment
retroactively, Ardan relies on an unpublished opinion, Goryn v.
Bd. of Review, Nos. A-1196-13 and A-1197-13 (App. Div. July 6,
2015). However, unpublished opinions do not constitute precedent
or bind us, Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39,
48 (2001); R. 1:36-3. Ardan also relies on an "Administrative
Instruction." However, an agency regulation or rule which
contravenes a statute is of no force, and the statute will
control. L. Feriozzi Concrete Co. v. Casino Reinvestment Dev.
Auth., 342 N.J. Super. 237, 251 (App. Div. 2001).
10 A-5826-13T2
Under the first part of the James two-part test, there are
"three circumstances that will justify giving a statute
retroactive effect: (1) when the Legislature expresses its
intent that the law apply retroactively, either expressly or
implicitly; (2) when an amendment is curative; or (3) when the
expectations of parties so warrant." Ibid. (citations omitted).
Under the first circumstance, the Legislature may
demonstrate its intent to retroactively apply a statute either
by stating so in the language of the statute or legislative
history, or by implication. Id. at 564 (citation omitted). If
the Legislature expressly states a statute is to be applied
retroactively, such intent should be given effect "absent a
compelling reason not to do so." Ibid. Implied intent,
however, "may be found from the statute's operation when
retroactive application is necessary to fulfill legislative
intent," or is otherwise "necessary to make the statute workable
or to give it the most sensible interpretation." Ibid. (quoting
Gibbons v. Gibbons, 86 N.J. 515, 522 (1981)).
Here, the Legislature did not expressly provide for
retroactive application of the amendment to N.J.S.A. 43:21-5(a).
The amendment does not refer to any retroactive application, and
the present tense of the language in the statute generally
suggests only prospective application. Although the amendment
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provides an exception for those individuals who voluntarily
leave work with one employer to accept work with another
employer, it does not remotely suggest or imply that the
exception applies retroactively to individuals who did so prior
to the amendment.
Under the second circumstance, a statute may be applied
retroactively if it is curative, meaning "designed to 'remedy a
perceived imperfection in or misapplication of a statute.'"
Ibid. (quoting Schiavo v. John F. Kennedy Hosp., 258 N.J. Super.
380, 386 (App. Div. 1992), aff'd, 131 N.J. 400 (1993)).
"Generally, curative acts are made necessary by inadvertence or
error in the original enactment of a statute or in its
administration." Ibid. (citation omitted). To be considered
curative, however, the statute must "not alter the act in any
substantial way, but merely clarif[y] the legislative intent
behind the [previous] act." Ibid. (second alteration in
original) (quoting 2nd Roc-Jersey Assocs. v. Town of Morristown,
158 N.J. 581 (1999)).
Here, the amendment to N.J.S.A. 43:21-5(a) was not designed
to remedy a perceived imperfection or misapplication of the
statute, nor did it rectify an error in the statute or its
administration or clarify the legislative intent behind the
statute. Rather, the amendment altered the statute in a
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substantial way by creating an entirely new exception for
individuals who leave work for other employment. Accordingly,
the "curative" justification for retroactive application does
not apply to the amendment.
Lastly, under the third circumstance, absent clear intent
for prospective application, the parties' expectations may
warrant retroactive application of the statute. Id. at 565
(citation omitted). In this case, at the time of the Board's
final decision, none of the parties had any expectation that
individuals who voluntarily left work with one employer to
accept work with another employer would not be subject to
disqualification. To the contrary, N.J.A.C. 12:17-9.1(e)(9)
clearly provided that an individual who left work to accept
other work was deemed to have left work voluntarily without good
cause attributable to the work.
Even assuming the Legislature clearly intended retroactive
application of the amendment, or the amendment is clearly
curative, the court must still consider the second part of the
James two-part test addressing whether retroactive application
will result in either an unconstitutional interference with
vested rights or a manifest injustice. Ibid. This part
"focuses on 'whether the parties relied on prior law to their
detriment, such that retroactive application would cause a
13 A-5826-13T2
deleterious and irrevocable result.'" Ibid. (quoting Innes v.
Innes, 117 N.J. 496, 511 (1990)). "[R]eliance on existing law
by the affected party and the unfairness of changing that law
are the important factors in making the retroactivity decision."
Oberhand v. Dir., Div. of Taxation, 193 N.J. 558, 572 (2008)
(alteration in original) (quoting In re D.C., supra, 146 N.J. at
58). "In evaluating those factors, a court must weigh the
'public interest in the retroactive application of the statute
against the affected party's reliance on previous law, and the
consequences of that reliance.'" Ibid. (quoting Nelson v. Bd.
of Educ., 148 N.J. 358, 372 (1997)).
Regardless of whether retroactive application of the
amendment to N.J.S.A. 43:21-5(a) was justified under one of the
three aforementioned circumstances, there is certainly a
manifest injustice to the Board since it reasonably relied on
the pre-amended statute and N.J.A.C. 12:17-9.1(e)(9) in
determining that Ardan was disqualified for benefits for leaving
work voluntarily without good cause attributable to the work.
Accordingly, even if permissible under part one of the James
test, retroactive application still fails part two because it
"would cause a deleterious and irrevocable result." James,
supra, 216 N.J. at 565 (citations omitted). We, therefore,
affirm the Board's decision.
14 A-5826-13T2
We have considered Ardan's contention that the Board failed
to make adequate factual findings in light of the record and
applicable legal principles and conclude it is without merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The record amply supports the Board's decision, Rule 2:11-
3(e)(1)(D), and the decision is not arbitrary, capricious, or
unreasonable.
Affirmed.
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