Ardan v. Board of Review

JUSTICE LaVECCHIA,

dissenting.

Appellant Margo S. Ardan left her nursing position at Lourdes Medical Center because she suffered from a debilitating medical condition exacerbated by her employment. She believed that seeking an accommodation from Lourdes before leaving her employment would have been an exercise in futility. Indeed, no statute or regulation required that she make a futile application as a condition of later receiving unemployment benefits. Yet now the majority—like the Board of Review and the Appellate Division—faults her for not doing so and denies her those benefits to which she is entitled.

The majority, moreover, denies Ardan the benefit of a statutory amendment—enacted while her case was on appeal—specifically intended to protect the workers that fit within her class. As applied to this case, the amendment would allow Ardan to receive the unemployment benefits she has been denied. The denial of benefits here is not only unjust, but cannot be squared with the unemployment statute’s “remedial and beneficial purposes,” in deference to which the law must be “construed liberally in favor of allowance of benefits.” Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 , 554 A.2d 1337 (1989).

I.

N.J.S.A. 43:21—5(a) provides that a person shall be disqualified from unemployment benefits “[f]or 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 reemployed and works eight weeks in employment.” As defined by the implementing regulations, “ ‘good cause attributable to such work’ means 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.” N.J.A.C. 12:17-9.1(b). However, there are several exceptions to that requirement, including when a person leaves his or her employment due to health or other medical reasons.

*615 Specifically, N.J.A.C. 12:17—9.3(b) states:

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. When a non-work connected physical and/or mental condition makes it necessary for an individual to leave work due to an inability to perform the job, the individual shall be disqualified for benefits for voluntarily leaving work.

Ardan believes she met this exception, and her position is supported by uncontroverted testimony before the appeal tribunal.

As to her health during her employment at Lourdes Medical Center, Ardan testified that her chiropractor had told her, on several occasions, “that the type of work I was doing was aggravating the situation, making things worse and I probably won’t feel better unless I ... found a different kind of work.” Her physician also noted in a letter that was admitted into evidence that

[a]s a direct result of long hours standing and walking on the hard surfaces lifting and moving patients ... Ms. Ardan was unable to continue to maintain gainful employment in that specific area of nursing. Consequently based on my best medical recommendation and those of other physicians and therapists caring for her I strongly recommend that she stop working at Lourdes in that capacity and get a less physically demanding job.

Concerning whether there was other “suitable work” available, Ardan testified that there was not. When asked about the possibility of Lourdes providing her with an accommodation, she testified as follows:

For one I know that they do offer the option of light duty for some people if you get ... you know, let's say you trip and fall and break your arm you can request light duty but it’s on a temporary basis. It is not a permanent situation. You know, light duty is for a specified period of time and that light duty is just not an option for an RN. You know, the care of the patient is ... primarily falls in my ... under my responsibility and if I can’t perform the duties then I can't be an RN there. I was hired as an RN. I was under contract as an RN because of .. . I had taken scholarship money from Lourdes Nursing school which is where I had gone to school and I had agreed to work for them as an RN after graduating from school for a certain period of time. I don’t have the education necessary to move into any kind of management or administrative ... they require bachelor degrees. I continue to work on my bachelor's degree in hope of that becoming an available opportunity to me but at that time the only position[s] that would have been available were lower ... lower positions like becoming a Nursing Assistant which *616 also has ... has the same physical requirements as an RN. So there ... it was not an option; it was not available to request accommodations or to ask for another position.

There is nothing to suggest that this testimony was in any way unreliable; the only party that could have disputed such testimony—Ardan’s employer—did not bother to appear at the hearing at which that testimony was adduced. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 498 , 126 A.2d 323 (1956) (“[W]here the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence.”).

Despite that uncontradicted evidence in the record, the administrative agency denied Ardan unemployment benefits because she did not provide her employer with advance notice of her medical problems and thus did not give her employer a chance to accommodate her needs. The Appellate Division, in reviewing the decision, affirmed that requirement. But no such requirement appears in the plain language of N.J.A.C. 12:17—9.3(b). Rather, that prior notice requirement appears in N.J.A.C. 12:17—9.3(c), which states:

Notwithstanding (b) above, an individual who has been absent because of a personal illness or physical and/or mental condition shall not be subject to disqualification for voluntarily leaving work if the individual has made a reasonable effort to preserve his or her employment, but has still been terminated by the employer. A reasonable effort is evidenced by the employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment.

[ (emphasis added).]

The Appellate Division’s analysis conflated the requirements of N.J.A.C. 12:17—9.3(b) and (c). However, the fact that a notice requirement appears in (c) and not in (b) is evidence that such a requirement should not be read into section (b) to Ardan’s disadvantage. See GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 308 , 625 A.2d 468 (1993) (“[W]here the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.”).

*617 The “notice” requirement imposed upon Ardan by the administrative agency, and condoned by the Appellate Division, finds no support in the statutory or regulatory language. N.J.A.C. 12:17— 9.3(b) contains no provision requiring notice to the employer, and so Ardan’s uncontested testimony before the appeal tribunal that there was no other suitable work available should have been sufficient to meet her burden under that regulation.

The notice requirement here is, in fact, a new rule of general applicability that must meet the demands required for formal agency rulemaking. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 , 478 A.2d 742 (1984) (listing factors for determining whether agency has engaged in rulemaking). The majority agrees that the Board of Review’s interpretation of N.J.A.C. 12:17-9.3(b) is unreasonable and that the regulation must be amended through the rulemaking process in order to impose a general notice-and-inquiry requirement. Nevertheless, the majority holds that Ardan’s “conclusory assertion” that her efforts to find suitable work within Lourdes would have been futile does not meet the evidentiary burden imposed by the regulation. In that sense, the majority imposes not so much an evidentiary burden but essentially the same notice requirement as the tribunals below.

It is unclear how Ardan was supposed to know the exact parameters of that burden either when leaving employment or at the hearing when such a requirement is not present in the applicable regulation. Although she was asked by the appeal tribunal whether she had ever requested an accommodation from her employer, she was never given any indication of an explicit requirement that she put her employer on notice of her medical problems by requesting an accommodation or that proof of such a request would form part of her burden before the appeal tribunal. The after-the-fact imposition of this new requirement is profoundly unfair. Any such requirement must be clearly imposed if the unemployment compensation laws are to meet their beneficent purposes.

*618 It is also difficult to understand how that burden was not met where her employer—the only other party with information on accommodation procedures—did not bother to participate at the second hearing before the appeal tribunal. Had the employer appeared, relevant information concerning its accommodation procedures—and what was or was not common knowledge about them—could have been brought before the appeal tribunal, and Ardan’s testimony could have been rebutted. Instead, the employer chose not to involve itself in the matter until after the agency proceedings had concluded. The employer’s belated effort to interject into a record new information that was not before the agency is profoundly unjust. In my view, the majority errs by relying, to any extent, on untested information and representations that the employer, without leave, sought to insert into this matter during oral argument before this Court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 , 916 A.2d 440 (2007) (“Our appellate courts will not ordinarily consider evidentiary material that is not in the record below.”); cf. R. 2:5-5(b) (providing procedure for supplementation of administrative record). The majority’s efforts on its own to bolster the record in favor of the employer is nothing other than baffling.

II.

Faulting Ardan for failing to meet a previously unknown eviden-tiary burden to provide alternative notice to her employer and to prove an employer’s inability to provide “other suitable work” is particularly unjust because it is plain that a person in her circumstances was meant to be protected under the terms of a 2015 amendment to N.J.S.A. 43:21-5(a). That amendment removes from the general strictures of N.J.S.A. 43:21-5(a) any

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.

[N.J.S.A. 43:21—5(a).]

*619 There is no dispute that Ardan meets that statutory safe harbor. Yet, the majority labors to find that retroactive application to this one individual would wreak havoc on retroactivity jurisprudence. Only an antiseptic application of our retroactivity law could reach such a conclusion. In my view, retroactive application of the amendment to Ardan’s disputed claim is appropriate.

Our retroactivity analysis focuses on two factors: “The first part questions whether the Legislature intended to give the statute retroactive application. The second part involves whether retroactive application of that statute will result in either an unconstitutional interference with vested rights or a manifest injustice.” James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 , 83 A.3d 70 (2014) (quoting In re D.C., 146 N.J. 31, 50 , 679 A.2d 634 (1996)). The first prong of the test recognizes three circumstances that warrant “giving a statute retroactive effect: (1) when the Legislature expresses its intent that the law apply retroactively, either expressly or implicitly; (2) when an amendment is curative; or (3) when the expectations of the parties so warrant.” Ibid.

The retroactive application of the statute, raised as an issue here, is not about opening dozens of prior cases but rather concerns one person who narrowly missed the protection of a statutory amendment. Although she filed her claim before the amendment was enacted, her claim was still being contested on appeal when the amendment became law. Not to afford Ardan that protection is to deny her the benefit of a remedial and beneficent statutory scheme, and an amendment that clearly focused on expanding the remedial reach of that beneficent program. Ardan is exactly the type of person the Legislature was concerned would “fall through the cracks” based on the existing wording of the unamended statutory scheme. That statement is evidence both that the Legislature intended to make the amendment retroactive and that the amendment is curative in nature.

First, such statements previously have been determined to be evidence of a legislative intent that a statute is to be applied retroactively. In Gibbons v. Gibbons, for example, we found that *620 “giving the [subject] statute retroactive application will fulfill the essential purpose of retroactivity, ‘to effectuate the current policy declared by the legislative body,’ ” 86 N.J. 515, 524-25 , 432 A.2d 80 (1981) (quoting Kruvant v. Twp. of Cedar Grove, 82 N.J. 435, 440 , 414 A.2d 9 (1980)). And in D.C. we found a statutory amendment to be retroactive where the Legislature “intended to enact remedial legislation to effectuate its purpose” and to address a statutory flaw. 146 N.J. at 55 , 679 A.2d 634 . A retroactive legislative intent may also be inferred where the Legislature attempts to address a particular problem resulting from an existing loophole. See id. at 54-55, 679 A.2d 634 (finding that Legislature intended retroactive application of statutory amendment where “[t]he legislative history demonstrates that the Legislature pointedly intended the amendments to address cases such as [the case before the Court]” and where problem at issue was “the primary motivating factor behind the Legislature’s enactment of these amendments”).

Second, the amendment is demonstrably curative in nature. A “curative” statutory amendment is “designed to ‘remedy a perceived imperfection in or misapplication of a statute.’ ” James, 216 N.J. at 564 , 83 A.3d 70 (quoting Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 386 , 609 A.2d 781 (App. Div. 1992), aff'd, 131 N.J. 400 , 620 A.2d 1050 (1993)). In D.C., this Court made clear that a statutory amendment that merely adds language without changing or eliminating any of the statute’s original language can be curative in nature. 146 N.J. at 51-52 , 679 A.2d 634 . We further stated that a curative “amendment explains or clarifies existing law and brings it into ‘harmony with what the Legislature originally intended.’ ” Id. at 51, 679 A.2d 634 (quoting Schiavo, 258 N.J. Super. at 386 , 609 A.2d 781 ); see also Gibbons, 86 N.J. at 524 , 432 A.2d 80 (stating that statutory amendment may be “curative insofar as it reflects the Legislature’s attempt to improve a statutory scheme already in existence”).

Here, the language added to N.J.S.A. 43:21-5(a) was meant to prevent people such as Ardan from “fall[ing] through the cracks” *621 of the legislative scheme. The amendment thus was pointedly addressed at people in Ardan’s position and was designed to remedy a perceived statutory shortcoming whereby those in Ardan’s position were being unfairly denied the benefits of the unemployment compensation safety net. Our case law acknowledges that such targeted action on the Legislature’s part provides evidence of an intent to give an amendment retroactive effect. D.C., 146 N.J. at 54 , 679 A.2d 634 (“The legislative intent to apply [statutory] amendments retroactively is further bolstered by a consideration of the specific purpose of those amendments and the contextual circumstances surrounding their passage.”). Moreover, contrary to the majority’s assertion, ante at 612-13, 177 A.3d at 782, the curative nature of the legislative action here cannot be analogized to cases involving legislative amendatory action that affects contracts or insurance. See, e.g., Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 375, 397 , 143 A.3d 254 (2016) (holding that statutory amendment providing “that a personal injury protection (PIP) insurance provider may be reimbursed for payments made to an injured insured party by the tortfeasor’s insurer only after the injured party’s claim is fully satisfied” should not be given retroactive effect); James, 216 N.J. at 555-56, 574-75 , 83 A.3d 70 (holding that statutory enactment relating to use of “step-down” provisions in employer uninsured or underinsured motorist coverage should not be given retroactive effect). Rather, the amendatory statute raised here relates directly to furthering the remedial and altruistic purposes underlying the unemployment laws. Yardville Supply Co., 114 N.J. at 374 , 554 A.2d 1337 ; see also 2 Sutherland, Statutory Construction, § 41:1 at 385-86 (7th ed. 2009) (explaining that curative amendments encompass legislative efforts to conform legal rights and relationships to “reflect the desires of ... the legislature”).

Our Court should fulfill that beneficent amendatory intent and give the curative amendment retroactive effect for Ardan, who has steadfastly persisted in her efforts to obtain unemployment benefits. Giving Ardan the benefit of the amendatory legislation would align the unemployment benefit program with the legislative effort *622 to have the program’s implementation better reflect the desires of the Legislature, as that intent has been more specifically expressed. In my view, to deny Ardan those benefits in the face of a legislative intent to the contrary is to elevate form over substance for purposes of retroactivity analysis and to frustrate the purposes of a remedial legislative scheme.

Accordingly, I respectfully dissent.