TJASON S. OLESEN v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE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-0

JASON S. OLESEN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and SOMERSET TIRE

SERVICE, INC.,

Respondents.

____________________________

August 31, 2017

 

Submitted August 22, 2017 Decided

Before Judges Manahan and Gilson.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 077,597.

Jason S. Olesen, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Elizabeth A. Davies, Deputy Attorney General, of counsel and on the brief).

Respondent Somerset Tire Service, Inc. has not filed a brief.

PER CURIAM

Jason S. Olesen appeals from a May 12, 2016 final agency decision by the Board of Review (Board), which found that he was disqualified from receiving unemployment compensation benefits under N.J.S.A. 43:21-5(a) because he left his job voluntarily without good cause attributable to the work. We affirm.

Olesen worked as a branch manager for Somerset Tire Service, Inc. (employer) from August 2012, until November 9, 2015. In June 2015, Olesen injured his shoulder at work. He underwent surgery, received workers' compensation, and returned to work in September 2015.

When he returned to work, Olesen's doctor advised that Olesen's duties should be restricted and that he should not lift or carry objects over a certain weight and he should avoid lifting above shoulder level. His employer was informed of these restrictions and agreed that Olesen could perform his duties as a branch manager with the medical restrictions.

Despite his employer's agreement, Olesen felt he had to perform activities that violated his medical restrictions because he believed his branch was understaffed. Olesen testified that his employer never asked him to perform duties that violated his medical restrictions. Nevertheless, Olesen went on to testify that to be a successful branch manager, certain jobs needed to be done and because the branch was understaffed, he felt he had to perform activities that exceeded his medical restrictions.

Olesen had several communications with his supervisors and his employer's human resource personnel during which he requested additional staff for his branch. The employer responded that Olesen could perform his duties as branch manager with his medical restrictions and they would try to get him more staff. Olesen testified, however, that the branch remained understaffed.

On November 2, 2015, Olesen submitted his resignation with an effective date of November 16, 2015. His employer informed him that his services were no longer needed and he was being terminated as of November 9, 2015.

On November 8, 2015, Olesen applied for unemployment benefits. The deputy director of the Division of Unemployment Insurance informed Olesen that he was disqualified from receiving benefits. Olesen appealed that decision and the Appeal Tribunal (Tribunal) conducted a hearing on January 15, 2016. Both Olesen and his employer presented testimony at the hearing.

On January 15, 2016, the Tribunal affirmed the deputy's determination, holding Olesen disqualified for unemployment benefits because he left his employment voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a). The Tribunal found that on two separate occasions Olesen's employer detailed the job duties Olesen was expected to perform and that those job duties could be performed within his medical restrictions. The Tribunal also noted that as a manager, Olesen could delegate work, but he chose to perform work that exceeded his medical restrictions. Consequently, the Tribunal rejected Olesen's contention that his employer did not accommodate his medical restrictions.

Olesen administratively appealed, and on May 12, 2016, the Board affirmed the Tribunal's decision based on the record established at the Tribunal.

Olesen now appeals from the Board's final agency decision. He argues that he is entitled to unemployment benefits because his employer failed to adequately staff his branch and, thus, he had to perform duties that required him to go beyond his medical restrictions. Olesen also argues that the Board's decision was arbitrary, "careless" and unreasonable.

The scope of our review on an appeal from a final determination of an administrative agency is limited. The agency's decision should not be disturbed unless shown to be arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "[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 factfinder 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)).

Here, the Board found that Olesen was disqualified from unemployment compensation benefits under N.J.S.A. 43:21-5(a), which provides that an individual may not receive benefits if he or she "left work voluntarily without good cause attributable to such work[.]" Although the statute does not define the term "good cause," that phrase has been construed to mean a "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)).

The test for determining whether an employee's decision to leave work constitutes "good cause" is one of "ordinary common sense and prudence." Brady, supra, 152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

Olesen contends that when he returned to work from a work-related injury, his medical restrictions were not accommodated. The Board, however, relying on the fact findings made by the Tribunal, found that substantial evidence established that the employer accepted Olesen's medical limitations and never required him to do work beyond his medical limitations. Instead, Olesen voluntarily chose to perform work outside his medical restrictions because of his perceived needs of the branch. The Board, therefore, rejected Olesen's contention that his medical restrictions were not accommodated. Those findings are adequately supported by substantial credible evidence in the record and we discern no basis for disturbing the Board's determination.

Olesen also argues that the Board failed to consider issues outside his medical restrictions in considering his eligibility for benefits. We discern no abuse of discretion in the Board's decision not to consider the staffing issues separate from Olesen's medical restrictions.

Affirmed.