NOT FOR PUBLICATION WITHOUT THE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-0773-17T3
CYNTHIA A. CORDOVA,
Appellant,
v.
BOARD OF REVIEW,
NEW JERSEY DEPARTMENT
OF LABOR and BAYADA
HOME HEALTH CARE, INC.,
Respondents.
__________________________
Submitted November 15, 2018 – Decided December 10, 2018
Before Judges Nugent and Reisner.
On appeal from the Board of Review, Department of
Labor, Docket No. 122,945.
Cynthia Cordova, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Emily M.
Bisnauth, Deputy Attorney General, on the brief).
Respondent Bayada Home Health Care, Inc., has not
filed a brief.
PER CURIAM
Claimant Cynthia A. Cordova appeals from a September 14, 2017 decision
of the Board of Review, affirming a July 20, 2017 determination of the Appeal
Tribunal. Because the Board's decision is supported by substantial credible
evidence, we affirm. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
Before we discuss the merits, we note the limited scope of this appeal. In
her July 20, 2017 decision – which the Board affirmed – the appeals examiner
agreed with the Deputy that claimant was ineligible for unemployment benefits
from May 21, 2017 through July 8, 2017, because she was unavailable for work.
See N.J.S.A. 43:21-4(c)(1). However, the appeals examiner remanded to the
Deputy for an initial determination of "[t]he matter of the claimant's eligibility
for benefits during later reported weeks of unemployment." The Deputy's
decision on remand is not before us. Consequently, our opinion only addresses
whether claimant was entitled to unemployment benefits from May 21, 2017
through July 8, 2017. 1
1
Arguably, the pending remand rendered this appeal interlocutory; however, in
the interests of justice, we will decide the merits. Neither party's brief tells us
what the Deputy decided on the remand, or whether claimant appealed from that
A-0773-17T3
2
We derive the following facts from the testimony presented at a telephonic
hearing before the appeals examiner on July 14, 2017, and a doctor's report
admitted in evidence during the hearing. Beginning in May 2013, claimant, a
licensed practical nurse, was employed full-time by a home health care agency.
She was still working there at the time of the hearing. However, in April 2017,
claimant told her employer that she needed to reduce her work hours to two days
a week, because she was going to collect "social security." Claimant's manager
documented that claimant told the manager that she was going to "retire" in April
but would still work on Tuesday and Wednesday nights. Thus, at her request,
claimant reduced her work hours from approximately forty hours per week to
sixteen hours per week. Claimant told her manager that she needed to reduce
her hours to avoid going over the earnings limit and jeopardizing her social
security benefits. The employer's representative testified at the hearing that the
employer had full-time work available for claimant, if she were willing to work
additional hours, and would be happy to give her additional work.
In response to the examiner's question, the employer's witness testified
that claimant never told the employer that she needed "an assignment that was
decision. Nothing in our opinion precludes claimant from separately appealing
the remand decision if it was unfavorable to her.
A-0773-17T3
3
not as physically taxing." She also testified that at the time of the he aring,
claimant was caring for a "little boy" and seemed to enjoy the work.
Claimant testified that she was injured in a car accident in "2012" and was
still receiving treatment for her injuries. She testified that she switched to the
night shift because she thought it would be less physically demanding. She
admitted that she asked the employer to reduce her hours because she was able
to "get extra money from the retirement." She confirmed that the social security
benefits were "widow's benefits" not connected with a disability.
In her testimony, claimant referred to a report from her doctor, but
conceded that the doctor did not recommend that she quit her nursing job. She
did not tell her employer that she needed an accommodation, but testified that
she did not believe that lighter duty would be available. She testified that she
was working with the State Division of Vocational Rehabilitation Services to
look for a lighter duty job. On cross-examination, it became clear that, if
claimant had told her employer that she was having physical difficulty doing her
job, the employer would have temporarily taken her off her job and sent her to
a doctor for a physical evaluation to be sure she could safely care for her patient.
Claimant testified that she did not disclose her physical condition, because she
was afraid that the employer would take her off "the case when I've been with
A-0773-17T3
4
this one patient for 11 years." She also stated that she would find it embarrassing
and humiliating to be evaluated by the employer's doctor.
The employer testified that lighter duty was available. For example,
claimant could be assigned to care for an infant or a small child, weighing 20
pounds, instead of caring for the 100-pound patient who was her current client.
Claimant responded that caring for any patient still involved repetitive lifting
and stated that her doctor recommended that she only work seven shifts per
month. She introduced in evidence a medical report from her doctor, dated July
6, 2017, stating that she had been injured in a 2011 accident and had problems
with her spine. The doctor opined in general terms that claimant needed to limit
her repetitive lifting, and that seven shifts a month was "as much as she can
physically tolerate." However, the doctor did not address how much weight
claimant could safely lift.
At the close of the testimony, the employer's witness told the examiner
that the employer was going to send claimant to a doctor for an evaluation,
pursuant to the company's policy. The outcome of the examination is not
reflected in this record.
A-0773-17T3
5
In her July 20, 2017 decision, the appeals examiner chose to believe
claimant's initial explanation to her employer for reducing her hours. The
examiner found as fact:
[Claimant] reduced her hours from forty (40) hours per
week to sixteen (16) hours per week, because she was
only permitted to earn up to $1,410.00 per month in
order to receive social security benefits. This was the
only reason the claimant reduced her hours. Continuing
full time work was available to the claimant.
In support of that finding, the examiner noted that claimant never requested an
accommodation to enable her to continue to work full-time, although full-time
work was available. However, as previously noted, the examiner remanded the
matter to the Deputy to make an initial determination as to whether claimant was
eligible for benefits during weeks of unemployment occurring after July 8, 2017.
Thus, claimant presumably had another opportunity to raise the medical issues
concerning whether she was able to work full-time on a going forward basis.
On this appeal, claimant raises a series of arguments, which she presents
in the following points:
I. APPELLANT CORDOVA SHOULD BE HELD
GENUINELY ATTACHED TO THE LABOR
MARKET, AVAILABLE FOR WORK, AND
ELIGIBLE FOR BENEFITS.
II. THE AGENCY ERRED IN ITS EVALUATION OF
EVIDENCE AND ASSESSMENT OF THE CASE
A-0773-17T3
6
AND SHOULD BE REVERSED AS ARBITRARY
AND CAPRICIOUS AND FAILING IN DUE
PROCESS AND FUNDAMENTAL FAIRNESS.
III. EVEN IF APPELLANT CORDOVA WAS NOT
GENUINELY ATTACHED TO THE JOB MARKET,
HER APPROVAL FOR ASSISTANCE WITH THE
AGENCY DIVISION OF VOCATIONAL
REHABILITATION SHOULD EXEMPT HER FROM
THIS REQUIREMENT.
All of those arguments presume the credibility of the testimony claimant
gave at the appeal hearing. However, we readily infer from the examiner's
decision that the examiner did not believe claimant's hearing testimony. Instead,
the examiner found that the initial explanation claimant gave her employer for
reducing her hours was the truth. The Board adopted the examiner's findings.
On this appeal, our review of the Board's decision is limited. We will not
disturb the Board's findings of fact as long as they are supported by substantial
credible evidence. See Brady, 152 N.J. at 210. We owe particular deference to
the examiner's decision, as adopted by the Board, concerning the credibility of
witness testimony. See Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App.
Div. 1997). While claimant gave an explanation for her failure to request an
accommodation, and for giving her employer what she claimed was a false
reason for reducing her work hours, the examiner was not obligated to believe
that testimony. In this case, we find no basis to second-guess the appeals
A-0773-17T3
7
examiner's evaluation of claimant's testimony. Based on the facts as the
examiner and the Board found them to be, claimant was not eligible for
unemployment benefits during the period of May 21, 2017 through July 8, 2017,
because she declined full-time work despite its availability at her workplace.
See N.J.S.A. 43:21-4(c)(1).
Accordingly, we affirm the Board's September 14, 2017 decision.
However, as previously noted, our opinion is limited to the time-frame
encompassed by the Board's decision, and we infer no view as to the merits of
any future administrative appeal claimant may file for any period after July 8,
2017. For example, we do not address her claim based on her enrollment in a
vocational training program, because she did not enroll in that program until
July 13, 2017.
Affirmed.
A-0773-17T3
8