BETH JACOBOWITZ FEASTER v. BOARD OF REVIEW, DEPARTMENT OF LABOR and KINLEY & MANBECK, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4314-07T34314-07T3

BETH JACOBOWITZ FEASTER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and KINLEY & MANBECK, INC.

Respondents.

_______________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Lyons and Waugh.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 175,113.

Beth Jacobowitz Feaster, appellant, pro se.

Anne Milgram, Attorney General, attorney for respondent, Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent, Kinley & Manbeck, Inc., has not filed a brief.

PER CURIAM

This appeal is taken from a decision of the Board of Review (Board) which affirmed a decision of the Appeal Tribunal, which, in turn, upheld a determination by the deputy that appellant, Beth Jacobowitz Feaster, was disqualified from receiving temporary disability benefits from October 29, 2007, to January 8, 2008, in accordance with N.J.S.A. 43:21-39(g).

Appellant had been gainfully employed as a sales and recruiting coordinator for Kinley & Manbeck, Inc. As a result of complications due to her pregnancy, appellant was unable to work full-time and accordingly filed for disability benefits on October 29, 2007. She had, however, arranged to work a reduced schedule of fifteen hours per week from home. Her employer certified on the disability claim form that appellant would receive the amount of $450.75 per week as "Continued Pay" during her disability leave. The employer did not check the box on the form describing the money to be paid to appellant as the supplemental difference between her regular weekly wage and disability benefits to be received. It did, however, attach a notice advising that appellant would be working no more than fifteen hours per week from home. Further, appellant stated on her application form that "I am working 12-15 hours a week. I was told I could work that and from home without it jeopardizing my disability. I was told by a representative from the State disability that 15 hours was the limit."

Based on the submissions, the deputy advised appellant that she was ineligible for disability benefits pursuant to N.J.S.A. 43:21-39(g) because she was performing work for remuneration or profit. Appellant filed an appeal of the determination of the deputy and on February 11, 2008, a hearing in the matter was held before the Appeal Tribunal. At the hearing, appellant testified it was her employer's intention to supplement her disability benefits rather than pay her for work performed. Appellant also testified that she was performing work, but at reduced hours and, she said further, that she was told by someone from the Department of Labor and Temporary Disability that she could work fifteen hours without it adversely impacting her claim. The Appeal Tribunal affirmed the determination of the deputy and appellant filed an appeal with the Board. The Board issued its decision affirming the decision of the Appeal Tribunal and this appeal ensued.

On appeal, appellant argues that the Board erred in failing to correct the misinformation given to her which, in turn, caused financial difficulty to her. Appellant also argues in letters submitted to us that, in addition to being given false information that she could work fifteen hours a week without affecting her disability payments, what she did was not really "work" in that she did not "perform my full job duties during the time of my disability while on bed rest." She also reiterated that the payments by her employer were merely a "supplement" to her benefits and not meant as wages.

The Supreme Court in Brady v. Bd. of Review has outlined our scope of review in matters such as this:

The judicial capacity to review administrative agency decisions is limited. Public Serv. Elec. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985) (citation omitted). Moreover, "[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (citations omitted); see also Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) ("Appellate courts must defer to an agency's expertise and superior knowledge of a particular field. Thus, if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result.") (citations omitted). If the Board's factual findings are supported "by sufficient credible evidence, courts are obliged to accept them." Self v. Board of Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981) (same).

Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. See In re Warren, 117 N.J. 295, 296 (1989). The Court "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. v. Turnpike Auth., 137 N.J. 8, 27 (1994).

[ 152 N.J. 197, 210 (1997).]

N.J.S.A. 43:21-39(g) reads as follows: "Notwithstanding any other provision of the 'Temporary Disability Benefits Law,' P.L. 1948, c. 110 (C. 43:21-25 et. al.), no benefits shall be payable under the State plan to any individual: (g) for any period during which the claimant performs any work for remuneration or profit." In this case, it is clear that there was substantial credible evidence supporting the Board's conclusion that appellant received monies for work performed for her employer during the period she claimed to be disabled. The employer explicitly stated on the form submitted for disability benefits that it anticipated paying $450.75 a week to appellant as "Continued Pay." In its letter of November 20, 2007, it stated "we came up with a plan . . . to have Beth work from home, limiting her to only 15 hours a week." Appellant herself admitted on her form that she was "working 12-15 hours a week." Appellant argues that she was not performing her full job duties and that what work she performed did not amount to her normal work. However, that argument is unavailing because the statute provides that if the claimant performs "any work" for remuneration or profit, she may not receive benefits. Consequently, the Board's application of the law to the facts presented to it is appropriately supported by substantial credible evidence.

Appellant next argues that she was provided false information by a representative of the Department of Labor. Appellant cannot identify the person to whom she spoke nor any printed material which confirms the advice allegedly given to her. Her claim, therefore, is one seeking relief based upon equitable estoppel. The doctrine of equitable estoppel is rarely invoked against a governmental entity except in instances to prevent a manifest injustice. Aqua Beach Condo. Ass'n. v. Dep't of Cmty. Affairs, 186 N.J. 5, 20 (2006). Moreover, a governmental body cannot ordinarily be estopped by prior acts that were in violation of law. Cipriano v. Dep't of Civil Serv., 151 N.J. Super. 86, 91 (App. Div. 1977). "Where the act in question is utterly beyond the jurisdiction of a public entity and is ultra vires, the doctrine of estoppel in the interest of equity and essential justice has no direct application." Ibid.

In this case, the statute is abundantly clear that one who receives any remuneration or benefits for any work during a period of disability may not receive benefits. Hence, any representation to the contrary would have been a violation of law. See Zimmerman v. Bd. of Review, 132 N.J. Super. 316, 323-24 (App. Div. 1975), in which we held there was no equitable estoppel arising from advice that was allegedly given to the claimant by the Division of Employment Security that it was satisfactory for the claimant to notify the claims office he would be unable to comply with a reporting date and that a personal appearance as required by the Division regulations would be unnecessary.

After a careful review of the record and law in this matter, we are satisfied that the Board's decision was premised on substantial credible evidence and was not arbitrary, capricious or unreasonable and, therefore, it should not be disturbed.

Affirmed.

(continued)

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A-4314-07T3

March 30, 2009