                   NOT FOR PUBLICATION WITHOUT THE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   Perr,  Associate  General  Counsel,
         argued the cause for respondent Lourdes
         Medical Center of Burlington County, Inc.
         (Jennifer L. Schwartz, Vice President Legal
            Affairs & General Counsel, attorney, 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




                                       2                                A-5826-13T2
comparable pay.     In her resignation letter to Lourdes, Ardan

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

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




                                    3                              A-5826-13T2
disqualified     for       benefits       under      N.J.S.A.       43:21-5(a)      as     of

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




                                            4                                    A-5826-13T2
another employer; (2) left work at Lourdes because of a physical

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, 152 N.J. 197, 210 (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."    Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.

Super. 74, 79 (App. Div. 1985)) (alteration omitted).                     "If the




                                     5                                    A-5826-13T2
Board's factual findings are supported 'by sufficient credible

evidence, [we] are obliged to accept them.'"                            Ibid. (quoting

Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).                           We also give

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

of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).                              "Unless

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

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

Brady, supra, 152 N.J. at 210.

        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, 201 N.J.

254, 262 (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.'"           Ibid.      However,      we     are    "not      bound     by    an

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

strictly legal issue[.]"             Lavezzi v. State, 219 N.J. 163, 172

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

extent       [the   agency's]       determination          constitutes         a      legal

conclusion, we review it de novo."                Ibid.

        An individual is disqualified for unemployment benefits:

              For the week in which the individual has
              left work voluntarily without good cause



                                           6                                       A-5826-13T2
            attributable to such work, and for each week
            thereafter until the individual becomes
            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."     Brady, supra, 152 N.J. at 218 (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, 192 N.J. Super. 284, 287 (App. Div.

1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174

(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.

Brady, supra, 152 N.J. at 213.       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, 77 N.J.

Super. 209, 214 (App. Div. 1962).       There is a limited exception




                                    7                           A-5826-13T2
to this general rule under N.J.A.C. 12:17-9.3(b), which provides

as follows, in pertinent part:

              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, 114 N.J. 371, 376

(1989) (citing Self, supra, 91 N.J. at 457; DeLorenzo v. Bd. of

Review, 54 N.J. 361, 363 (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




                                            8                              A-5826-13T2
accommodation.       Ardan's self-serving testimony was insufficient

to establish there was no other suitable work available.

       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


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.



                                        9                                A-5826-13T2
          or pay of the             employment         of    the   first
          employer[.][2]

    Generally,        the     law     favors      prospective,        rather       than

retroactive, application of new legislation unless a recognized

exception applies.         James v. N.J. Mfrs. Ins. Co., 216 N.J. 552,

556 (2014).     "The preference for prospective application of new

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

fairness and due process.'"            Id. at 563 (quoting Cruz v. Cent.

Jersey Landscaping, Inc., 195 N.J. 33, 45 (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."              Ibid. (quoting In re D.C., 146

N.J. 31, 50 (1996) (quoting Phillips v. Curiale, 128 N.J. 608,

617 (1992))).




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,
2015). However, unpublished opinions do not constitute precedent
or bind us, Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39,
48 (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., 342 N.J. Super. 237, 251 (App. Div. 2001).



                                         10                                 A-5826-13T2
      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

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."                        Ibid. (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, 86 N.J. 515, 522 (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




                                                11                                       A-5826-13T2
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

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.'"

Ibid. (quoting Schiavo v. John F. Kennedy Hosp., 258 N.J. Super.

380,     386     (App.       Div.    1992),      aff'd,         131     N.J.      400       (1993)).

"Generally, curative acts are made necessary by inadvertence or

error    in      the     original      enactment           of    a     statute        or    in     its

administration."              Ibid. (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."          Ibid.       (second         alteration            in

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

158 N.J. 581 (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




                                                12                                          A-5826-13T2
substantial     way        by    creating     an    entirely       new    exception         for

individuals who leave work for other employment.                              Accordingly,

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




                                             13                                     A-5826-13T2
deleterious and irrevocable result.'"             Ibid. (quoting Innes v.

Innes, 117 N.J. 496, 511 (1990)).             "[R]eliance on existing law

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, 193 N.J. 558, 572 (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., 148 N.J. 358, 372 (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."         James,

supra, 216 N.J.       at 565 (citations omitted).                   We, therefore,

affirm the Board's decision.




                                       14                                  A-5826-13T2
      We have considered Ardan's contention that the Board failed

to make adequate factual findings in light of the record and

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.




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