NOT FOR PUBLICATION WITHOUT THE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-0214-16T1
DAVID HOLLAND, SR.,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT and CLEAN HARBORS
INDUSTRIAL SERVICES, INC.,
Respondents.
______________________________
Argued telephonically July 2, 2018 –
Decided July 16, 2018
Before Judges Yannotti and Haas.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
016,725.
Sarah Hymowitz argued the cause for appellant
(Legal Services of New Jersey, attorneys;
Sarah Hymowitz and Melville D. Miller, Jr.,
on the brief).
Andy Jong, Deputy Attorney General, argued the
cause for respondent Board of Review (Gurbir
S. Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Andy Jong, on the brief).
Respondent Clean Harbors Industrial Services
Inc., has not filed a brief.
PER CURIAM
Appellant David Holland appeals from the July 29, 2016 final
decision of the Board of Review (Board), which affirmed the March
8, 2016 decision of the Appeal Tribunal that appellant was
disqualified from receiving unemployment compensation benefits on
the ground that he left work voluntarily without good cause
attributable to the work. After reviewing the record before us,
and mindful of the prevailing legal standards, we reverse and
remand to the Board for further proceedings.
Holland is a military veteran, who began suffering back
problems after retiring from the service. His doctors have treated
this condition by prescribing muscle relaxants and pain
medication.
On March 11, 2013, Holland started working as a truck driver
for Clean Harbors Industrial Services (Clean Harbors). During his
job interview, Holland told his employer of his pre-existing back
issues and that his condition was aggravated by heavy lifting and
manual labor.
For the first three months of his employment, Holland drove
a specially-equipped truck to and from industrial clean-up sites.
Once at a site, he set up the truck's equipment, which included
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pressure washers and vacuums, and turned this equipment on and off
as needed by the other employees. This work was not physically
taxing for Holland, and he was able to perform all his duties,
including light lifting of no more than twenty pounds.
In June 2013, however, Clean Harbors changed Holland's
primary job duties when he was assigned to help other employees
dismantle an industrial plant in Newark. At this job site, Holland
only operated a truck one or two days a week because the employer
kept the vehicles parked at the site. Instead, he now assisted
the other employees with their physical labor. Among other tasks,
Holland operated a pneumatic-type air hammer used to clean
industrial tanks. He had to hold this tool over his head, which
caused his back pain to flare up. He also picked up trash, swept,
moved equipment, and repeatedly moved a 55-gallon drum, which also
caused his back problems to worsen.
Holland attempted to make a medical appointment at a Veterans
Administration hospital, but the hospital was unable to have a
back specialist see him until July 29, 2013. Holland continued
to work, although his pain was increasing as he attempted to
perform his new duties. Holland testified that as a result, he
was constantly in pain and was unable to move without great
difficulty.
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On July 19, 2013, Holland told his supervisor that he could
no longer do the job and needed to address his back condition.
Holland knew that Clean Harbors did not have any less strenuous
work available, and the supervisor confirmed during their meeting
that this was the case. The supervisor told Holland to contact
him if his condition improved in the future because he was a valued
employee and eligible for rehire.
On July 29, 2013, the specialist at the VA hospital examined
Holland. The specialist told Holland to avoid work involving
heavy lifting, and find a less strenuous job. Eventually, the
doctors found that Holland had a pinched nerve and arthritis in
four of his lower back discs. He later began a course of back
injections to address these issues.
On December 8, 2013, Holland applied for unemployment
benefits. This claim was denied by a Deputy Claims Examiner, the
Appeal Tribunal,1 and the Board. Holland appealed this
determination. We later granted Holland's motion for a remand
because the Deputy, the Appeal Tribunal, and the Board all failed
1
The Appeal Tribunal hearing examiner conducted a hearing at
which Holland and his former supervisor testified.
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to consider Holland's documentary evidence in their respective
decisions.2
On remand, the Appeal Tribunal conducted another hearing at
which only Holland appeared.3 Holland's attorney specifically
asked the hearing examiner to consider several of the Board's
regulations in addressing Holland's claim for benefits.
In pertinent part, the first of these regulations, N.J.A.C.
12:17-9.3 states:
(b) 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. 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.
. . . .
(d) When an individual leaves work for health
or medical reasons, medical certification
shall be required to support a finding of good
cause attributable to work.
2
We did not retain jurisdiction.
3
The same hearing examiner presided each time the Appeal Tribunal
considered Holland's application.
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Through his attorney, Holland asserted that as set forth in
N.J.A.C. 12:17-9.3(b), he suffered from a physical disability that
preceded his employment with Clean Harbors, but which was
aggravated once his job duties changed. He also contended that
Clean Harbors had no other suitable work available to him at the
time he left his employment. While Holland did not give Clean
Harbors a copy of a medical report or certification from a
physician at the time he left work, Holland pointed out that
N.J.A.C. 12:17-9.3(d) did not require such a submission and,
instead, merely directed a claimant to submit this supporting
documentation in connection with an application for benefits.
In the event that the Appeal Tribunal determined that N.J.A.C.
12:17-9.3(b) was not applicable, Holland also asked the hearing
examiner to make a determination as to whether he refused new
suitable work when Clean Harbors changed his job duties at the
Newark site. Holland argued that under N.J.A.C. 12:17-11.1, if
the new assignment constituted suitable work, he should only be
disqualified from receiving benefits for four weeks for leaving
his position. If the new duties were unsuitable, however, he
asserted that no disqualification should apply.
In fleshing out this legal theory, Holland maintained he was
eligible for benefits because Clean Harbors modified his work
duties and, in effect, made him a new offer of work that was
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unsuitable for him given his back problems. Holland argued that
N.J.A.C. 12:17-11.5(a)(3) defines a new offer of work as one
involving "substantially different duties, terms or conditions of
employment from those he or she agreed to perform in his or her
existing contract of hire." As noted above, Holland's duties at
the Newark job site were much more physically demanding than those
he performed when he was first hired as a truck driver. Holland
alleged this work was "unsuitable" in view of "the degree of risk
involved to [his] health, safety and . . . [his] physical
fitness[.]" N.J.A.C. 12:17-11.2.
On January 20, 2016, the Appeal Tribunal again affirmed the
Deputy's denial of Holland's application for unemployment
benefits. The hearing examiner's written decision was virtually
a mirror image of his original decision, even though we had
remanded the matter after concluding that decision was deficient.
The examiner did not address any of the Board's regulations
that Holland raised in support of his application. Instead, he
found that Holland left work without good cause because he did not
obtain any medical documentation supporting his claim until after
he told his employer he could no longer perform the new physically-
demanding tasks at the Newark site because they were aggravating
his back condition. As noted above, however, N.J.A.C. 12:17-
9.3(d) does not require an employee to give such documentation to
7 A-0214-16T1
his employer. Contrary to the testimony provided at the two
hearings, the examiner also stated that Clean Harbors did not
require Holland to perform these new assignments.
Holland immediately asked the Appeal Tribunal to reopen the
matter so that his arguments concerning the Board's regulations
could be addressed.4 On March 8, 2016, the hearing examiner
responded by issuing a new decision which was again almost a carbon
copy of the first two. The examiner did not mention, much less
analyze, the specific arguments Holland raised, or cite any of the
Board's regulations upon which they were based. Instead, the
examiner found for the first time that Holland never discussed his
medical problems with his supervisor, even though there was no
factual basis in the record for that finding. The examiner
concluded that because Holland had not had his medical appointment
with the specialist at the VA hospital before he left his job, he
"failed to show there was any medical necessity connected to his
decision to resign."
Holland appealed this decision to the Board, and submitted
another written brief addressing the regulations he felt the Board
needed to evaluate as part of its review. Ignoring this request,
4
Holland submitted a written brief in support of this request,
which fully explained the legal arguments he was raising based on
the Board's regulations.
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the Board issued a one-page decision on July 29, 2016, affirming
the Appeal Tribunal's determination without further comment. This
appeal followed.
On appeal, Holland asserts that the Board erred by failing
to address his argument that he was entitled to unemployment
benefits based upon the regulations he cited in his submissions
to the Appeal Tribunal and the Board. We agree.
We begin by recognizing that our review of an administrative
agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197,
210 (1997). "Unless . . . the agency's action was arbitrary,
capricious, or unreasonable, the agency's ruling should not be
disturbed." Ibid.
At the same time, however, an administrative agency has a
clear obligation to demonstrate through its decisions "that the
litigants have been heard and their arguments considered. Justice
requires no less." Bailey v. Bd. of Review, 339 N.J. Super. 29,
33 (App. Div. 2001). Here, neither the Appeal Tribunal nor the
Board addressed Holland's arguments based on the Board's own
regulations that he had good cause to leave his position because
his new work duties were aggravating his preexisting medical
condition, and that his employer had offered him more physically-
demanding assignments he had no obligation to accept.
9 A-0214-16T1
Instead, the Board merely adopted the Appeal Tribunal's
decision, which did not even cite these regulations or accurately
relay the testimony presented at the two hearings conducted by the
hearing examiner. In addition, the examiner did not summarize,
much less evaluate, the medical documentation Holland submitted
after he was able to be seen by the specialist at the VA hospital.
When, as here, an agency "overlook[s] or underevaluat[es] . . .
crucial evidence," a reviewing court may set aside the agency's
decision. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192
(2001) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). That
is clearly the appropriate course of action here.
Accordingly, we reverse the Board's decision denying
Holland's application for unemployment benefits and remand for a
new consideration of his application, the facts underlying it, and
the legal arguments he has raised. The Board shall promptly
determine whether the Appeal Tribunal should conduct a new hearing
in the matter so that the Board may address the regulations and
legal issues raised, or whether the existing record is sufficient
for the Board to render a new decision on Holland's claim.
On remand, the Board shall also consider the Supreme Court's
recent decision in Ardan v. Bd. of Review, 231 N.J. 589 (2018),
which was obviously not available at the time of its July 29, 2016
decision. In Ardan, the Court held that an employee is not always
10 A-0214-16T1
required to notify the employer of his or her medical condition
before leaving a position as permitted by N.J.A.C. 12:17-9.3(b),
and may not be required in every case to inquire as to whether the
employer will accommodate the limitations imposed on the employee
by that condition. Id. at 605.
In remanding this matter, we express no opinion on the merits
of Holland's claim for benefits, and only direct the Board to
reconsider the appeal and fully address the factual and legal
issues that the parties have presented.
Reversed and remanded. We do not retain jurisdiction.
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