SORA KRESCH v. BOARD OF REVIEW AND BAIS TOVA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0138-09T30138-09T3

SORA KRESCH,

Appellant,

v.

BOARD OF REVIEW AND

BAIS TOVA,

Respondents.

________________________________________________________________

 

Submitted July 6, 2010 - Decided

Before Judges Cuff and Lisa.

On appeal from the Board of Review, Department of Labor, Docket No. 220,411.

Sora Kresch, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondent Bais Tova has not filed a brief.

PER CURIAM

Appellant, Sora Kresch, appeals from the July 2, 2009 final decision of the Board of Review (Board), which affirmed the April 28, 2009 determination by the Appeal Tribunal that she was ineligible for State Plan disability benefits because she had not worked the required number of base weeks or earned the requisite amount within her base year as required by N.J.S.A. 43:21-41(d)(2). Appellant argues (1) that the weeks she worked in New York before moving to New Jersey should be credited to her in determining the number of base weeks she worked within her base year, (2) that, pursuant to N.J.S.A. 43:21-45.1, the Commissioner of Labor should enter into a reciprocal agreement with New York to credit her for the weeks she worked in New York, and (3) that she should not be denied benefits because her disability arose out of giving birth prematurely, which was beyond her control. We reject these arguments and affirm.

The facts are undisputed. Before moving to New Jersey in August 2008, appellant lived in New York, where she worked as a teacher for two years through August 2008. She commenced employment in New Jersey, also as a teacher, on September 1, 2008. She worked in that position for fourteen weeks until December 5, 2008, one day before the premature delivery of her child on December 6, 2008. During the fourteen weeks, appellant earned more than $143 per week. Her total earnings during that time were $4055.74. Appellant produced sufficient medical documentation to establish her disability after December 5, 2008. The basis for denial of her claim was the inadequate number of weeks worked in New Jersey and the inadequate earnings in New Jersey.

No one shall be eligible for State Plan disability benefits unless he or she has "within the 52 calendar weeks preceding the week in which the individual's period of disability commenced, established at least 20 base weeks or earned not less than 1,000 times the minimum wage . . . , which amount shall be adjusted to the next higher multiple of $100.00." N.J.S.A. 43:21-41(d)(2). The applicable minimum wage in this case was $7.15 per hour. Therefore, the aggregate required income pursuant to the statute was $7200. Appellant's fourteen weeks fall short of the twenty weeks required, and her $4055.74 earnings fall short of the $7200 aggregate earnings required.

Appellant's New York earnings during the fifty-two weeks preceding her disability cannot be credited to her to determine her eligibility. To be eligible, "employment" must either be "localized in this State," N.J.S.A. 43:21-19(i)(2)(A), or must be such that "some of the service is performed in this State," subject to further requirements not relevant here, N.J.S.A. 43:21-19(i)(2)(B). Appellant's New York work does not meet either of these criteria.

We also find unpersuasive appellant's argument regarding reciprocal agreements. Although N.J.S.A. 43:21-45.1 authorizes the Commissioner of Labor to enter into such agreements with his or her counterparts in other States, no such agreement has been entered into between New Jersey and New York. Accordingly, there is no basis for crediting appellant's New York employment weeks pursuant to such an agreement.

Finally, appellant's argument that an exception to the eligibility requirements should be made in her case because she gave birth prematurely and thus had no control over when she became disabled has no basis in law. Indeed, there is nothing unusual about a non-work-related disability occurring unexpectedly and beyond the control of the affected individual.

The scope of our review of the decision of an administrative agency is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The Board's decision here was based upon undisputed evidence establishing the relevant facts, and its decision is fully in conformity with the controlling legal principles. Accordingly, that decision is supported by substantial credible evidence and is reasonable. We therefore have no occasion to set it aside.

 
Affirmed.

(continued)

(continued)

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A-0138-09T3

July 21, 2010