ANDREW H. KASTEL, JR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4040-16T2

ANDREW H. KASTEL, JR.,

Appellant,

v.

BOARD OF REVIEW and
COLLATERAL RECOVERY, INC.,

Respondents.
________________________________

Submitted October 3, 2018 – Decided October 12, 2018

Before Judges Reisner and Mawla.

On appeal from the Board of Review, Department of
Labor, Docket No. 098,785.

Andrew H. Kastel, Jr., appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa H. Raksa,
Assistant Attorney General, of counsel; Aaron J. Creuz,
Deputy Attorney General, on the brief).

Respondent Elite Collateral Recovery, Inc., has not
filed a brief.
PER CURIAM

Andrew H. Kastel, Jr. appeals from an April 3, 2017 final decision of the

Board of Review (Board), which found he was disqualified from receiving

unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a), because

he left his job voluntarily without good cause attributable to the work. We

affirm.

The following facts are taken from the record. Kastel worked for Elite

Collateral Recovery, Inc. (Elite) as a general manager from November 2014

through January 20, 2016. He left his job due to a non-work-related medical

condition, which caused him to seek disability benefits on January 22, 2016.

His original return to work date was March 20, 2016, but was extended to June

17, 2016, pursuant to his doctor's orders. However, Kastel informed Elite on

June 2, 2016, he could no longer perform his employment duties and never

returned to work. He did not provide any medical documentation to Elite and

filed a claim for unemployment benefits as of July 17, 2016.

The Division of Unemployment and Disability Insurance (Division)

disqualified Kastel for benefits pursuant to N.J.S.A. 43:21-5(a) because he left

work voluntarily without good cause attributable to the work. Kastel appealed

and the Appeals Tribunal (Tribunal) conducted a telephonic hearing, during

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which Kastel testified he did not return to work because he felt he had not healed

sufficiently from a medical procedure. He testified he had attempted to contact

Elite and left a phone message indicating he was no longer capable of

performing the activities associated with his employment. Kastel testified he

did not provide Elite with any documentation related to his inability to perform

his employment duties at the time.

The Tribunal disqualified Kastel from unemployment benefits for the

same reason as the Division. The Tribunal stated to avoid disqualification under

N.J.S.A. 43:21-5(a), an individual seeking unemployment after having

voluntarily left work for medical reasons must show the reason was related to

the work.

Kastel appealed the Tribunal's decision to the Board, which remanded the

matter to the Tribunal to develop the record regarding whether Kastel's medical

condition was caused or aggravated by his work at Elite. At the subsequent

telephonic hearing on January 11, 2017, Kastel and his counsel appeared along

with Iraide Pineiro, president of Elite. Kastel provided an October 20, 2016 note

from a doctor stating Kastel could not return to his job because it was physically

demanding and would aggravate his medical condition, which prevents him from

standing and maintaining balance. Kastel also provided a December 30, 2016

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note from a nurse practitioner, stating he was cleared to work as of July 2016,

but could no longer perform his employment duties because his medical

condition would be aggravated by substantial walking. Kastel testified the

conditions of his employment required substantial walking, standing, and

maneuvering of heavy objects. He also testified these activities could cause

blisters, which unhealed, could turn into ulcers.

The Tribunal found Kastel did not make a reasonable effort to

communicate his medical condition and workplace restrictions with Elite before

filing for unemployment benefits and again disqualified him. The Tribunal

rejected Kastel's medical evidence as "self-serving" and "afterthought[s]." It

also concluded Elite's owner was not aware of Kastel's condition until a

conversation on October 16, 2016, which was after the denial of benefits. The

Tribunal also accepted Pineiro's testimony Elite did not have positions available

to accommodate Kastel's medical conditions.

Kastel appealed and the Board affirmed. The Board found Kastel was

disqualified because he could not perform his job duties due to non -work

connected medical conditions. This appeal followed.

The scope of our review of an administrative agency's final determination

is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The

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agency's decision may not be disturbed unless shown to be arbitrary, capricious,

or unreasonable or inconsistent with the applicable law. Ibid.; In re Warren, 117

N.J. 295, 296 (1989). "If the Board's factual findings are supported 'by sufficient

credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd.

of Review, 91 N.J. 453, 459 (1982)). 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 fact finder could reasonably so conclude

upon the proofs." Ibid. (alteration in original) (quoting Charatan v. Bd. of

Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

On appeal, Kastel argues he met the requirements of N.J.A.C. 12:17-

9.3(b) for the medical good cause exception and should have qualified for

unemployment compensation. He contends the Board relied upon case law

which predated the amendment of N.J.A.C. 12:17-9.3(b), and thus applied the

wrong legal standard. He argues the Tribunal erred by rejecting his medical

evidence because it had not been provided to the employer and was obtained

after his separation from employment. Kastel disputes N.J.A.C. 12:17-9.3

requires an employee to request alternative work or provide the employer with

medical records.

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 An employee who has left work voluntarily has the burden to prove he or

she did so with good cause attributable to the work, and thus has the right to

unemployment compensation. Brady, 152 N.J. at 213, 218. An individual is

disqualified from receiving benefits "[f]or the week in which the individual has

left work voluntarily without good cause 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).

Generally, good cause has been defined as "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)). However, individuals, who leave work for a good, but

personal reason, do not qualify for unemployment compensation under N.J.S.A.

43:21-5(a). See Brady, 152 N.J. at 213 (stating N.J.S.A. 43:21-5(a) was

amended in 1961 "to disqualify claimants who left work for purely personal

reasons."). Such reasons include voluntarily terminating employment because

the requirements of the work are harmful to an existing physical condit ion with

a non-work-related origin. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457

(App. Div. 1967). Nonetheless, "[t]he Unemployment Compensation Law

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'protects not only workers who are involuntarily unemployed – those who are

laid-off or terminated from their jobs by their employers – but also those who

voluntarily quit their jobs for good cause attributable to their work.'" Ardan v.

Bd. of Review, 231 N.J. 589, 602 (2018) (quoting Utley v. Bd. of Review, 194

N.J. 534, 543-44 (2008)).

N.J.A.C. 12:17-9.3(b) states:

[a]n 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. 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, the individual shall
be disqualified for benefits for voluntarily leaving
work.

The burden rests on the claimant to prove his medical condition was aggravated

by his employment duties in order to qualify for the statutory medical good

cause exception. Brady, 152 N.J. at 213.

Kastel argues he qualifies for unemployment benefits under the exception.

However, because Kastel failed to establish his medical condition was in fact

aggravated by his employment at Elite, the Board did not err in affirming the

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Tribunal's denial of unemployment benefits. Indeed, where an applicant for

benefits demonstrates "through uncontroverted medical evidence, that [his]

disease has been and will be aggravated by the [work] environment . . . [t]his

constitutes 'good cause.'" Israel v. Bally's Park Place, Inc., 283 N.J. Super. 1, 5

(App Div. 1995) (citations omitted). Therefore, Kastel had to demonstrate "the

environment at [his] job aggravated [his] illness." Ibid. To meet this burden,

he had to supply a "medical certification . . . to support a finding of good cause

attributable to the work." N.J.A.C. 12:17-9.3(d).

Kastel's proofs fell short. He testified his initial leave from work was

caused by a diabetic blister becoming an ulcer as a result of the amount of

walking his employment required. However, he failed to provide the Division

with medical proofs showing performance of his employment responsibilities

had aggravated his medical condition.

Indeed, the October 20, 2016 medical record states only that "Patient is

unable to return to his previous position of employment with Elite[.] The job is

to [sic] phsically [sic] demanding and would aggravate [his] present medical

condition that prevents patient from standing and keeping balance for extended

amounts of time." The second record dated December 20, 2016, only states

Kastel "was advised that his medical condition would be aggravated by

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substantial walking, such as is present in his work at Elite . . . , and that such

activity should be avoided to protect his health as of the time he was released to

work [in] July of 2016." A record dated January 23, 2017, which was not

presented to the Tribunal, but was presented to the Board, recounts Kastel's

treatment history and states he was treated for a "chronic ulcer of [the] toe that

progressed from a non healing blister he had acquired on [July 2,] 2015."

However, there was no medical proof that the blister or the ulcer were caused

by the work or aggravated by the work.

None of the medical records provided by Kastel predate his

disqualification for benefits let alone explain how his employment aggravated

his non-work-related condition. The Board did not err in finding Kastel failed

to meet his burden of proof. The Board's decision was not arbitrary, capricious,

or unreasonable, and is supported by the evidence in the record.

Affirmed.

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