BRENDA PARKER VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCEDEVELOPMENT)

NOT FOR PUBLICATION WITHOUT THE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-0215-16T2

BRENDA PARKER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT, and MATRIX
PERSONNEL1 SOLUTIONS, INC.,

Respondents.
_________________________________

Submitted October 23, 2017 – Decided November 2, 2017

Before Judges Sabatino and Rose.

On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
080,028.

Brenda Parker, appellant pro se.

Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Arundhati Mohankumar, Deputy
Attorney General, on the brief).

Respondent Matrix Personnel Solutions, Inc.
has not filed a brief.

1
The record at times spells this "Personel."
PER CURIAM

Appellant Brenda Parker ("claimant") seeks reversal of the

Board of Review's August 29, 2016 final agency decision rejecting

her claim for unemployment benefits. Applying the required

deference owed to the Board within its area of expertise, we

affirm.

Claimant was employed as a housekeeper for Matrix Personnel

Solutions, Inc. ("Matrix"), a company which has not participated

in this appeal. She contends that while working at Matrix, she

aggravated various medical conditions, including bursitis in her

left shoulder and triggering in her right thumb. Claimant received

treatment and was excused from work for two days by her treating

doctor, Dr. Venkata Jonna, but was found otherwise able to return

to work with no restrictions. About a month later, her symptoms

worsened.

On November 15, 2015, claimant sent a letter of resignation

to her employer's management, stating that she needed to resign

because certain job duties such as mopping, vacuuming, and sweeping

worsened and aggravated the arthritis in her hand. She indicated

in the letter that she was giving the employer two weeks' notice

and that she would be willing to return to work if she could be

relieved of those specific duties. The employer's manager said

he would check with the personnel department, but failed to get

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back to her. Claimant did not follow up further on the subject

and did not return to work.

Claimant applied for unemployment benefits. The Deputy

Director denied her claim upon finding she had left work

voluntarily without good cause attributable to the work. Claimant

challenged that decision. The Appeal Tribunal conducted an initial

hearing in February 2016, at which time claimant testified and a

Human Resources representative from Matrix also appeared.

Following that hearing, the Appeal Tribunal concluded in its

initial February 16, 2016 decision that claimant was disqualified

for benefits. Thereafter, the Board of Review remanded the matter

back to the Appeal Tribunal for an additional hearing.

The second hearing before the Appeal Tribunal was held on May

24, 2016. This time the employer did not appear. Claimant and

her then-attorney appeared, but did not present any live medical

testimony. Claimant and her counsel did present her medical

records, as well as materials from various medical websites, which

claimant relied upon to support her claim of medical aggravation

and her alleged need for a reasonable accommodation.

Following the second hearing, the Appeal Tribunal again

rejected claimant's claim, concluding on remand that her

resignation from her job was "based on a personal assessment of

her conditions." The Appeal Tribunal found specifically that

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claimant did not "explore her treatment options, or vigorously

pursue a solution from the employer in [an] effort to protect her

job before tendering her resignation." In addition, the Appeal

Tribunal noted that "general medical information obtained from the

internet is not a substitute for a medical certification from a

doctor."

Claimant again filed an administrative appeal with the Board

of Review. This time she presented a certification from a Dr.

Lori C. Talbot, a Board-certified family practice physician. Dr.

Talbot had not examined claimant, but had reviewed her records.

Dr. Talbot opined that claimant's medical conditions "are

consistent with conditions which can be seriously aggravated by

work;" that "the work of a housekeeper is consistent with the type

of work which could aggravate subacromial bursitis and trigger

finger;" and that the medical website information she submitted

is "consistent with and accurately describes these conditions and

their potential aggravation through work and other activities."

Dr. Talbot added that claimant's situation "is consistent with the

type . . . appropriate from an individual experiencing severe

health effects, but wanting accommodation in order to prevent

further health damage."

In its second final agency decision dated August 29, 2016,

the Board of Review upheld the continued denial of benefits to

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claimant. The Board noted that claimant had been given a full and

impartial hearing with the complete opportunity to offer any and

all evidence, and that there was no valid ground for a further

hearing.

On appeal, claimant argues: (1) her medical conditions meet

the tests for substantial aggravation of her health problems and

that she therefore should be awarded benefits; (2) her unfulfilled

request to her employer for a reasonable accommodation, and the

lack of an interactive process to explore such an accommodation,

evidences an "unhealthful condition" that violates the law and

provides good cause for her termination of employment; (3) she was

denied due process by the agency; (4) an adverse inference should

be made against her employer because it did not provide competing

testimony; and (5) there is substantial and allegedly unrefuted

evidence in her favor.

In considering these arguments contesting the Board's final

agency decision, we are guided by well-established principles.

When reviewing appeals involving unemployment benefits, we accord

particular deference to the expertise of the Board of Review, and

its repeated construction and application of Title 43. See, e.g.,

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd.

of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). "'[I]n

reviewing the factual findings made in an unemployment

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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.'" Brady, supra, 152 N.J. at 210 (quoting

Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.

1985)).

"If the 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); Goodman

v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981)). Our

courts also give due regard to the agency's credibility findings.

Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997)

(citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). 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 (citing In re Warren, 117 N.J. 295, 296 (1989)).

With these governing principles of deference in mind, we turn

to the merits of claimant's appeal. The central substantive issue

is whether claimant is disqualified for unemployment benefits

because she left her position "voluntarily without good cause

attributable to such work[.]" N.J.S.A. 43:21-5(a). Personal

reasons for termination of employment, no matter how compelling

they may be, do not comprise "good cause" under the unemployment

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statutes for resignation. Utley v. Bd. of Review, 194 N.J. 534,

544 (2008). A claimant maintains the burden of proof to establish

such good cause attributable to the work. N.J.A.C. 12:17-19.1(c).

The pertinent regulations specify that "[w]hen an individual

leaves work for health or medical reasons, [a] medical

certification shall be required to support a finding of good cause

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

a claimant "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 . . . provided there was no other

suitable work available which the [claimant] could have performed

within the limits of the disability." N.J.A.C. 12:17-9.3(b).

A pivotal issue in applying these laws and regulations is the

claimant's medical condition at the time the claimant submits a

letter of resignation. Combs v. Bd. of Review, 269 N.J. Super.

616, 624 (App. Div. 1994). The medical proofs must demonstrate

that working conditions caused the claimant to suffer medical

problems to such an extent as to make resignation medically

necessary. See Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971).

Here, the Appeal Tribunal and the Board reasonably concluded

that claimant failed to sustain her burden of proving, at the two

hearings, medical necessity to resign. The record shows that

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prior to resigning from Matrix, claimant was evaluated and treated

by Dr. Jonna. Significantly, in her record dated September 28,

2015, Dr. Jonna excused claimant from work for two days due to

trigger finger and shoulder bursitis, but further indicated the

claimant could return to work soon thereafter on October 5. In

her accompanying narrative report, Dr. Jonna described the

conditions and the steroid injections she administered to

claimant, but noted no future work restrictions for her beyond the

two-day period. Given this information, Matrix had no duty to

provide claimant with a medical accommodation scaling back her

duties, or to render a decision on the request within the short

period of time demanded in claimant's resignation letter.

In addition, after claimant resigned in November 2015, Dr.

Jonna authored a follow-up record on May 2, 2016 stating claimant

had recovered from her trigger finger and bursitis conditions, and

that she "can return to work with no restrictions effective

immediately." This follow-up record undercuts claimant's position

that she was unable to obtain and perform other employment

following her resignation.

We recognize that plaintiff's narrative testimony before the

Appeal Tribunal recounted how she had been informed orally by Dr.

Jonna that her condition would worsen if she continued to work as

a housekeeper, and might require surgery. However, those alleged

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statements by Dr. Jonna are not corroborated by the documentary

record. As the finder of fact, the Appeal Tribunal was entitled

to give little or no credence to claimant's representations about

the doctor's hearsay statements.

We agree further with the agency that the Appeal Tribunal was

justified in giving little or no weight to medical website

materials that claimant printed out from the Internet. At best,

those website materials are merely generic in nature and do not

rise to the evidential level of a competent diagnosis or prognosis

by a licensed physician who had examined the patient.

Nor was the agency required to award benefits to claimant

based on the certification she submitted from Dr. Talbot in August

2016 following her loss at the second hearing. The certification

was submitted belatedly after claimant had a fair opportunity to

present evidence at two hearings before the Appeal Tribunal and

prior to the record's close. Moreover, Dr. Talbot never examined

claimant, and only performed a "paper review" of her records. In

essence, Dr. Talbot's certification was simply too little and too

late to aid claimant.

The balance of claimant's arguments lack sufficient merit to

warrant discussion. R. 2:11-3(e)(1)(D) and (E).

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Affirmed.

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