The New Jersey Appellate Division recently affirmed a Board of Review and Appeal Tribunal decision denying a claimant from receiving unemployment benefits. In an unpublished decision, the Appellate Division held that the claimant, Rolando Montero, left his work voluntarily because of illness and did not keep in touch with his employer or provide them medical documentation. As a result, the claimant was disqualified from receiving unemployment benefits.
Mr. Montero had been employed with the Institute of Nutrition and Natural Health from February 1, 2005 until January 23, 2009. Mr. Montero worked primarily in the company’s New York store, but also worked temporarily in the New Jersey store. In November, 2008, Mr. Montero was unable to work as a result of illness, which caused him to travel to Cuba to receive medical treatment. It is unknown from the opinion exactly what the illness was that Mr. Montero was suffering. In January, 2009, the Institute of Nutrition and Natural Health closed its New York location, which Mr. Montero took as his termination. Mr. Montero testified that he did not speak with his employer and found out of the store closing from his wife who had also worked for the Institute of Nutrition and Natural Health.
The President and Owner of the Institute of Nutrition and Natural Health testified that she asked Mr. Montero for documentation regarding his illness several times and he failed to provide same. She also testified that she was aware that he gone to Cuba and that although she fired Mr. Montero’s wife, she never terminated Mr. Montero’s job and that it remained open to him.
In affirming the Board of Review’s decision to disqualify Mr. Montero from receiving unemployment benefits, the Appellate Division noted that its standard of review requires it to accord deference to the Board of Review’s fact finding unless it is “arbitrary, capricious or unreasonable” or is not supported by substantial credible evidence in the record as a whole. With this in mind, the Appellate Division stated that the Board of Review found that the President of the company’s testimony more creditable than the claimant’s testimony.
Based upon the decision, there seems to several unresolved questions of fact that would support a decision to remand the case for further testimony. For example, what was the medical reason that resulted in Mr. Montero’s inability to work? Was it a serious health condition that would qualify him for medical leave under the New Jersey Law Against Discrimination or the Family and Medical Leave Act? Did Mr. Montero’s wife, who also worked for the company, advise the company as to the medical reasons resulting in Mr. Montero being unable to work? What was the reason that the Institute of Nutrition and Natural Health terminated Mr. Montero’s wife’s employment, but allegedly decided to continue to employee Mr. Montero even though he did not come to work for more than two months? Did Mr. Montero have health insurance or an ability to obtain medical documentation regarding his illness? Otherwise, why did he have to go to Cuba?
Answers to these questions would have helped the court determine whether Mr. Montero had job protection under state and federal medical leave laws or whether he established good cause for his voluntarily leaving of work. Unfortunately for Mr. Montero, unless he appeals to the New Jersey Supreme Court and they hear his appeal, these questions will remain unanswered and he will not receive unemployment benefits.