Alan Schorr’s Employment Case of The Week ending April 11, 2014

Kutcher v. Board of Review, A-5231-10T3 (App. Div. April 11, 2014)

The case of Kutcher v. Board of Review highlights why it is so difficult to reverse an unemployment finding of voluntarily quit at the Appellate Division. The interplay between anti-discrimination laws and unemployment is rarely explored in most cases, where the employee is usually viewed to have voluntarily left work without cause because the employee became sick or was injured.

Richard Kutcher worked for Aim Oil Company, where he was an on-site supervisor, heavy equipment operator, truck driver and, at times, an estimator. Kutcher suffered a work-related back injury in October 2008. Following back surgery and after-care treatment, Kutcher was released to return to work as of January 2010. Kutcher’s treating physician (the workers’ compensation physician) imposed restrictions on work tasks to include light duty, but not to lift or carry anything weighing over 40 lbs. on a repetitive basis. The physician also said that Kutcher could occasionally drive small or large trucks, especially trucks with automatic transmissions. He was not to use any “heavy equipment”.

Upon return to work, it appears that the employer asked the physician for a clarification on the duties that Mr. Kutcher could perform which included driving and the workers’ compensation physician said that he could. However, Mr. Kutcher said that he felt uncomfortable driving a truck until he was fully recovered. He offered to do estimating work, but it was a slow time and the employer did not have that kind of work. The employer gave Mr. Kutcher a letter advising that he was being laid off “due purely for financial reasons.” The letter also stated, “if any work comes up such as estimates, office, installations (no heavy lifting), light driving, we will call you to see if you can come in.” Kutcher was never called for work and filed for unemployment.

Without recounting a long and tortured procedural history at unemployment, he was repeatedly disqualified for benefits because the Division and Board of Review found that there was work available for Mr. Kutcher upon his return, which Kutcher unreasonably refused, and therefore, despite the employer’s claim that Mr. Kutcher was laid off for financial reasons, he was still disqualified for benefits. He appealed and the Appellate Division affirmed the disqualification.

Kutcher possibly could have protected himself by getting an opinion from his own doctor instead of relying upon a workers’ compensation physician paid for by the employer’s insurance company. Often a personal physician will have a different opinion than a workers’ compensation doctor. If Mr. Kutcher’s personal physician had disagreed with the workers’ compensation doctor, then the employer would have been required to undertake an interactive process to determine whether Mr. Kutcher could be reasonably accommodated. Sometimes it is necessary to get a third neutral physician involved.

The Appellate Division never addressed discrimination laws, probably because the issue was never raised by Mr. Kutcher. Employees who lose their jobs in these circumstances are sometimes faced with the decision between discrimination litigation and unemployment litigation. An Appellate Division decision that Mr. Kutcher refused to do work for which he was medically cleared would destroy both his discrimination claim and his unemployment claim. On the other hand, a well-supported appeal claiming that the employer violated discrimination laws could result in a big double win. But voluntary leaving claims are very hard to win at the Appellate Division. For those reasons employees need to decide early on whether to pursue administrative remedies, judicial remedies, or both.

Claimant’s attorney: Elizabeth T. Foster.

Respondent Board of Review’s attorneys: John J. Hoffman, Acting Attorney General, Lewis A. Scheindlin, Assistant Attorney General, George N. Cohen, Deputy Attorney General.

Appellate Panel: Judges Lihotz and Hoffman.