NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5826-13T2

MARGO S. ARDAN, APPROVED FOR PUBLICATION Appellant, April 25, 2016 v. APPELLATE DIVISION

BOARD OF REVIEW, LOURDES MEDICAL CENTER OF BURLINGTON COUNTY, INC., and ALLIANCE HEALTHCARE,

Respondents. _________________________________

Argued March 7, 2016 – Decided April 25, 2016

Before Judges Simonelli, Carroll and Sumners.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 412,283.

Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Mr. Talbot, on the briefs).

Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).

Cindy M. Perr, Associate General Counsel, attorney for respondent Lourdes Medical Center of Burlington County, Inc., joins in the brief of respondent Board of Review. Respondent Alliance Healthcare has not filed a brief.

The opinion of the court was delivered by

SIMONELLI, J.A.D.

Appellant Margo S. Ardan appeals from the December 13, 2013

final decision of respondent Board of Review (Board), which

affirmed the September 26, 2013 decision of the Appeal Tribunal

that Ardan was disqualified from receiving benefits pursuant to

N.J.S.A. 43:21-5(a) because she left her employment at

respondent Lourdes Medical Center of Burlington County, Inc.

(Lourdes) without good cause attributable to the work. On

appeal, Ardan contends that she had medical good cause to leave

her employment with Lourdes; an amendment to N.J.S.A. 43:21-

5(a), which should be applied retroactively, permitted her to

leave her employment for equal or better employment elsewhere;

and the Board failed to make adequate factual findings. We

reject these contentions, and affirm.

We derive the following facts from the record. Ardan was

employed by Lourdes as a registered nurse from September 7,

2010, until she resigned on November 7, 2012. Before resigning,

Ardan found a "desk job" at Alliance Healthcare (Alliance) that

was less physically demanding and provided better work hours and

comparable pay. In her resignation letter to Lourdes, Ardan

said she was leaving "to seek other opportunity." She never

2 A-5826-13T2 mentioned having any medical condition that affected her ability

to work, nor did she request an accommodation.

On November 12, 2012, Ardan began working for Alliance as a

healthcare communicator. She was separated from that job after

seven weeks because she could not pass a certification test.

She filed a claim for unemployment benefits on December 23,

2012.

On January 28, 2013, the Deputy Director of the Division of

Unemployment and Disability Insurance determined that Ardan was

disqualified for benefits as of November 4, 2012, because she

left work at Lourdes voluntarily without good cause attributable

to the work. The Deputy Director also determined that the seven

weeks Ardan worked and wages she earned at Alliance were

insufficient to remove the disqualification.

Ardan appealed to the Appeal Tribunal. At a hearing, Ardan

never mentioned any medical condition that affected her ability

to work at Lourdes. Rather, she testified that she left that

job because she was forty-nine years old, was running around for

twelve hour shifts, and the job "just got too difficult." In a

February 25, 2013 decision, the Appeal Tribunal determined that

Ardan left work at Lourdes for employment with Alliance and was

disqualified for benefits under N.J.S.A. 43:21-5(a) as of

3 A-5826-13T2 November 4, 2012, because she left work voluntarily without good

cause attributable to the work.

Ardan appealed to the Board, claiming for the first time

that she left Lourdes due to a non-work connected medical

condition that was aggravated by her working conditions. She

submitted medical documentation supporting her claim, including

a report from her treating chiropractor that was dated after the

Appeal Tribunal's February 25, 2013 decision. She also

submitted medical records, which showed she had significant

problems with her neck, lower back and left knee that pre-dated

her employment with Lourdes. Ardan also claimed for the first

time that there was no other suitable work available at Lourdes.

In an August 16, 2013 decision, the Board remanded the

matter to the Appeal Tribunal for a new hearing and decision on

all issues. At the hearing, Ardan admitted that she never

advised Lourdes of her medical condition or provided Lourdes

with any medical documentation. She also admitted that she

never requested an accommodation or leave of absence, but

testified, with no documentary support, that there was no other

suitable work available at Lourdes.

In a September 26, 2013 decision, the Appeal Tribunal found

that Ardan: (1) left work at Lourdes to accept employment with

another employer; (2) left work at Lourdes because of a physical

4 A-5826-13T2 condition personal to her that was not work-connected and made

it necessary for her to leave her job due to an inability to

perform the job; (3) never informed Lourdes she was leaving for

medical reasons; (4) never requested a leave of absence,

accommodation, or change in duties or schedule; and (5) never

afforded Lourdes an opportunity to make changes to her schedule

and/or duties to accommodate her medical condition.

Accordingly, the Appeal Tribunal concluded that Ardan was

disqualified for benefits under N.J.S.A. 43:21-5(a) and N.J.A.C.

12:17-9.1(e)(9) as of November 4, 2012, because she left work at

Lourdes voluntarily without good cause attributable to the work.

Ardan appealed to the Board. The Board reviewed the record

and, in a December 13, 2013 final decision, affirmed for the

reasons expressed by the Appeal Tribunal. This appeal followed.

Our review of an administrative agency decision is limited.

Brady v. Bd. of Review,

(1997). "In reviewing

the factual findings made in an unemployment 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."

(quoting Charatan v. Bd. of Review,

(App. Div. 1985)) (alteration omitted). "If the

Board's factual findings are supported 'by sufficient credible

5 A-5826-13T2 evidence, [we] are obliged to accept them.'"

(quoting

Self v. Bd. of Review,

(1982)). We also give

due regard to the agency's credibility findings. Logan v. Bd.

of Review,

(App. Div. 1997). "Unless

. . . the agency's action was arbitrary, capricious, or

unreasonable, the agency's ruling should not be disturbed."

.

Moreover, we "should give considerable weight to a state

agency's interpretation of a statutory scheme that the

legislature has entrusted to the agency to administer." In re

Election Law Enf't Comm'n Advisory Op. No. 01-2008,

(2010). "We will defer to an agency's interpretation

of both a statute and implementing regulation, within the sphere

of the agency's authority, unless the interpretation is 'plainly

unreasonable.'"

However, we are "not bound by an

agency's interpretation of a statute or its determination of a

strictly legal issue[.]" Lavezzi v. State,

(2014) (alteration omitted) (citation omitted). "Thus, to the

extent [the agency's] determination constitutes a legal

conclusion, we review it de novo."

An individual is disqualified for unemployment benefits:

For 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

6 A-5826-13T2 reemployed and works eight weeks in employment[.]

[N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily bears the burden

of proving that he or she "did so with good cause attributable

to work."

(citation omitted);

N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good

cause,' our courts have construed the statute to mean '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,

(App. Div.

1983) (quoting Condo v. Bd. of Review,

(App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause

attributable to such work" as "a reason related directly to the

individual's employment, which was so compelling as to give the

individual no choice but to leave the employment."

An employee who leaves work for good, but personal, reasons

is not deemed to have left work voluntarily with good cause.

. Thus, a claimant who leaves work

for good, but personal, reasons is subject to disqualification

under N.J.S.A. 43:21-5(a). Morgan v. Bd. of Review,

(App. Div. 1962). There is a limited exception

to this general rule under N.J.A.C. 12:17-9.3(b), which provides

as follows, in pertinent part:

7 A-5826-13T2 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.

An employee who is unable to work because of illness and "makes

an attempt to protect his or her employment" is not deemed to

have voluntarily quit without good cause attributable to the

work. Yardville Supply Co. v. Bd. of Review,

(1989) (citing

; DeLorenzo v. Bd. of

Review,

(1969)).

Although Ardan's medical evidence showed she was unable to

work at Lourdes due to a non-work connected medical condition

that was aggravated by her working conditions, she made no

attempt whatsoever to protect her employment. She never

notified Lourdes of her medical condition, nor did she submit

any medical documentation or request an accommodation. Instead,

she resigned, merely advising Lourdes that she was leaving "to

seek other opportunity" and depriving Lourdes of the opportunity

to address the matter and determine if there was an

accommodation. Ardan's self-serving testimony was insufficient

to establish there was no other suitable work available.

8 A-5826-13T2 We conclude that the Board reasonably interpreted N.J.A.C.

12:17-9.3(b) to require an employee to notify an employer of a

medical condition that was aggravated by the working conditions,

request an accommodation, and afford the employer an opportunity

to address the matter to determine whether there was other

suitable work available. Ardan's failure to do so disqualifies

her for benefits under N.J.S.A. 43:21-5(a) because she left work

voluntarily without good cause attributable to the work.

Ardan was also disqualified for benefits under N.J.A.C.

12:17-9.1(e)(9), which provides that an individual who leaves

work "[t]o accept other work" is deemed to have left work

voluntarily without good cause attributable to the work. We

reject Arden's argument that the following amendment to N.J.S.A.

43:21-5(a)1 should be applied retroactively:

This subsection shall not apply to an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer[.][2]

1 This amendment to N.J.S.A. 43:21-5(a) became effective May 4, 2015, nearly one and one-half years after the Board's final decision in this matter. 2 To support her argument that we should apply the amendment retroactively, Ardan relies on an unpublished opinion, Goryn v. Bd. of Review, Nos. A-1196-13 and A-1197-13 (App. Div. July 6, (continued)

9 A-5826-13T2 Generally, the law favors prospective, rather than

retroactive, application of new legislation unless a recognized

exception applies. James v. N.J. Mfrs. Ins. Co.,

(2014). "The preference for prospective application of new

legislation 'is based on [the Court's] long-held notions of

fairness and due process.'"

at 563 (quoting Cruz v. Cent.

Jersey Landscaping, Inc.,

(2008)).

Courts must apply a two-part test to determine whether a

statute should be applied retroactively: (1) whether the

Legislature intended to give the statute retroactive

application; and (2) whether retroactive application "will

result in either an unconstitutional interference with vested

rights or a manifest injustice."

(quoting In re D.C.,

, 50 (1996) (quoting Phillips v. Curiale,

(1992))).

Under the first part of the James two-part test, there are

"three circumstances that will justify giving a statute

retroactive effect: (1) when the Legislature expresses its

(continued) 2015). However, unpublished opinions do not constitute precedent or bind us, Trinity Cemetery Ass'n v. Twp. of Wall,

(2001); R. 1:36-3. Ardan also relies on an "Administrative Instruction." However, an agency regulation or rule which contravenes a statute is of no force, and the statute will control. L. Feriozzi Concrete Co. v. Casino Reinvestment Dev. Auth.,

(App. Div. 2001).

10 A-5826-13T2 intent that the law apply retroactively, either expressly or

implicitly; (2) when an amendment is curative; or (3) when the

expectations of parties so warrant."

(citations omitted).

Under the first circumstance, the Legislature may

demonstrate its intent to retroactively apply a statute either

by stating so in the language of the statute or legislative

history, or by implication. Id. at 564 (citation omitted). If

the Legislature expressly states a statute is to be applied

retroactively, such intent should be given effect "absent a

compelling reason not to do so." Ibid. Implied intent,

however, "may be found from the statute's operation when

retroactive application is necessary to fulfill legislative

intent," or is otherwise "necessary to make the statute workable

or to give it the most sensible interpretation." Ibid. (quoting

Gibbons v. Gibbons,

(1981)).

Here, the Legislature did not expressly provide for

retroactive application of the amendment to N.J.S.A. 43:21-5(a).

The amendment does not refer to any retroactive application, and

the present tense of the language in the statute generally

suggests only prospective application. Although the amendment

provides an exception for those individuals who voluntarily

leave work with one employer to accept work with another

employer, it does not remotely suggest or imply that the

11 A-5826-13T2 exception applies retroactively to individuals who did so prior

to the amendment.

Under the second circumstance, a statute may be applied

retroactively if it is curative, meaning "designed to 'remedy a

perceived imperfection in or misapplication of a statute.'"

(quoting Schiavo v. John F. Kennedy Hosp.,

(App. Div. 1992), aff'd,

(1993)).

"Generally, curative acts are made necessary by inadvertence or

error in the original enactment of a statute or in its

administration."

(citation omitted). To be considered

curative, however, the statute must "not alter the act in any

substantial way, but merely clarif[y] the legislative intent

behind the [previous] act."

(second alteration in

original) (quoting 2nd Roc-Jersey Assocs. v. Town of Morristown,

(1999)).

Here, the amendment to N.J.S.A. 43:21-5(a) was not designed

to remedy a perceived imperfection or misapplication of the

statute, nor did it rectify an error in the statute or its

administration or clarify the legislative intent behind the

statute. Rather, the amendment altered the statute in a

substantial way by creating an entirely new exception for

individuals who leave work for other employment. Accordingly,

12 A-5826-13T2 the "curative" justification for retroactive application does

not apply to the amendment.

Lastly, under the third circumstance, absent clear intent

for prospective application, the parties' expectations may

warrant retroactive application of the statute. Id. at 565

(citation omitted). In this case, at the time of the Board's

final decision, none of the parties had any expectation that

individuals who voluntarily left work with one employer to

accept work with another employer would not be subject to

disqualification. To the contrary, N.J.A.C. 12:17-9.1(e)(9)

clearly provided that an individual who left work to accept

other work was deemed to have left work voluntarily without good

cause attributable to the work.

Even assuming the Legislature clearly intended retroactive

application of the amendment, or the amendment is clearly

curative, the court must still consider the second part of the

James two-part test addressing whether retroactive application

will result in either an unconstitutional interference with

vested rights or a manifest injustice. Ibid. This part

"focuses on 'whether the parties relied on prior law to their

detriment, such that retroactive application would cause a

deleterious and irrevocable result.'" Ibid. (quoting Innes v.

Innes,

(1990)). "[R]eliance on existing law

13 A-5826-13T2 by the affected party and the unfairness of changing that law

are the important factors in making the retroactivity decision."

Oberhand v. Dir., Div. of Taxation,

(2008)

(alteration in original) (quoting In re D.C., supra, 146 N.J. at

58). "In evaluating those factors, a court must weigh the

'public interest in the retroactive application of the statute

against the affected party's reliance on previous law, and the

consequences of that reliance.'" Ibid. (quoting Nelson v. Bd.

of Educ.,

(1997)).

Regardless of whether retroactive application of the

amendment to N.J.S.A. 43:21-5(a) was justified under one of the

three aforementioned circumstances, there is certainly a

manifest injustice to the Board since it reasonably relied on

the pre-amended statute and N.J.A.C. 12:17-9.1(e)(9) in

determining that Ardan was disqualified for benefits for leaving

work voluntarily without good cause attributable to the work.

Accordingly, even if permissible under part one of the James

test, retroactive application still fails part two because it

"would cause a deleterious and irrevocable result."

(citations omitted). We, therefore,

affirm the Board's decision.

We have considered Ardan's contention that the Board failed

to make adequate factual findings in light of the record and

14 A-5826-13T2 applicable legal principles and conclude it is without merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The record amply supports the Board's decision, Rule 2:11-

3(e)(1)(D), and the decision is not arbitrary, capricious, or

unreasonable.

Affirmed.

15 A-5826-13T2