STATE OF NEW JERSEY VS. LARRY D. FISHERÂ (15-08-1690, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5413-15T2
JASON S. OLESEN,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and SOMERSET TIRE
SERVICE, INC.,
Respondents.
____________________________
Submitted August 22, 2017 – Decided August 31, 2017
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.
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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
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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,
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"[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,
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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.
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