KEITH R. SEITZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR, M.T.M. MECHANICAL and MIKE MICA PLUMBING LLC,1

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0266-09T30266-09T3

KEITH R. SEITZ,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, M.T.M. MECHANICAL

and MIKE MICA PLUMBING LLC,

Respondents.

_________________________________________________

 

Submitted May 12, 2010 - Decided

Before Judges Payne and Fasciale.

On appeal from a Final Decision of the Board

of Review, Department of Labor, Docket No. 226,299.

Keith R. Seitz, appellant pro se.

Paula T. Dow, 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).

M.T.M. Mechanical and Mike Mica Plumbing, LLC, have not filed a brief.

PER CURIAM

Claimant, Keith Seitz, appeals from a final decision of the Board of Review affirming a determination that he was ineligible for emergency extended unemployment compensation benefits (EUC08) pursuant to the Federal-State Extended Unemployment Compensation Act (the Act). Pub. L. 110-252, Title IV, 4001 to 4007 (June 30, 2008). We affirm.

The record reflects that Seitz, a plumbing mechanic, filed for unemployment benefits on November 8, 2008, following employment, successively, by Patriot Plumbing, LLC, M.T.M. Plumbing and Michael J. Mika Plumbing & Heating. In March 2009, following the exhaustion of regular benefits, he applied

for EUC08 benefits. His claim reflected the fact that, during the course of his base year, calculated as extending from July 1, 2007 through June 30, 2008, he had worked nineteen base weeks and had earned total wages of $19,629. The claim was denied by a deputy claims examiner on the grounds that he had not established twenty base weeks of employment in the base year or earnings of $22,400 a sum constituting forty times his weekly benefit rate of $560.

Seitz appealed the denial of his claim to the Appeal Tribunal. A telephonic hearing took place on May 27, 2009. At the hearing, Seitz testified that his last employer, Michael Mica, had not paid him for his last week of work, and he argued that if that final week were considered, he would be found to have met the twenty-week statutory minimum employment requirement. The appeals examiner agreed to hold the record open until May 29, 2009 to permit Seitz to obtain the necessary evidence of employment. However, the evidence was not received by that deadline, and as a result, the decision of the deputy claims examiner was affirmed in an opinion mailed on June 5, 2009.

Seitz filed a timely appeal from the decision of the Appeal Tribunal. While that appeal was pending, a letter dated June 15, 2009 was sent by Michael Mika to the appeals examiner. The letter stated:

This letter for Keith R. Seizt SS # [omitted] Docket # 226,299. Keith work for Mika Plumbing about 17 weeks. Keith last pay check Mika Plumbing didn't pay Keith because of the economy.

Additionally, a June 6, 2009 letter from a senior payroll specialist at Paychex, the company handling Mika Plumbing's payroll, stated in relevant part:

Pursuant to our conversation, I am providing you with the start and respective termination dates for Mr. Keith Seitz. As per my detail, I show that Mr. Seitz began his service with your business on May 2, 2008. In addition, I show that Mr. Seitz terminated employment with your business on or around his last check date of August 11, 2008.

In an opinion mailed on August 24, 2009, after receipt of the evidence of employment that we have set forth, the Board of Review affirmed the decision of the Appeal Tribunal, stating: "On the basis of the record below, we agree with the decision reached." Upon receipt of that final decision, Seitz filed the present appeal.

On appeal, Seitz renews the arguments made by him before the Appeal Tribunal, and states that the records sent to the Appeal Tribunal by Mica reinforce his right to EUC08 benefits. We disagree. As the Board of Review demonstrates,

4001(d)(2)(A) of the Act provides:

. . . an individual shall not be eligible for emergency unemployment compensation under this title unless, in the base period with respect to which the individual exhausted all rights to regular compensation under the State law, the individual had 20 weeks of full-time insured employment or the equivalent in insured wages, as determined under the provisions of the State law implementing section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970 (26 U.S.C. note)

Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970 provides that "the equivalent in insured wages shall be earnings covered by the State law for compensation which exceed 40 times the individual's most recent weekly benefit amount . . . ."

Because Seitz has failed to provide evidence of twenty weeks of employment during the base period or earnings in excess of $22,400, he cannot prevail on this claim. The fact that he was employed in the period from July 1, 2008 through August 11, 2008 is not relevant in this context, because that period falls outside of the base year.

Our review of the determinations of the Board of Review is limited in scope. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must defer to an agency's expertise and superior knowledge of a particular field. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Moreover, in conducting our review of the Board's factual findings, the test is not whether we would come to the same conclusion if required to make the original determination, "'but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (citations omitted)). If the Board's factual conclusions are supported by sufficient credible evidence in the record, we must accept them. Self v. Bd. of Review, 91 N.J. 453, 459 (1982).

Further, we "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. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994). In that regard, our review is restricted to a determination

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (citing Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).]

Under these standards, we perceive no error in the Board's factfinding or its legal conclusion. Accordingly we affirm its determination to deny benefits.

Affirmed.

 

This entity is also known as Michael J. Mika Plumbing & Heating.

This law appears as a note to 26 U.S.C.A. 3304.

"Benefit year" is defined as "the 364 consecutive calendar days beginning with the day on, or as of, which [a claimant] first files a valid claim for benefits." N.J.S.A. 43:21-19(d). "Base year" is defined as "the first four of the last five completed calendar quarters immediately preceding an individual's benefit year." N.J.S.A. 43:21-19(c). Because Seitz applied for benefits on November 8, 2008, his benefit year extended from that date to November 7, 2009. His base year was calculated by excluding the period from October 1, 2008 through November 8, 2008, because that was not a complete calendar quarter. The period of July 1, 2008 to September 30, 2008 was also excluded because it constituted the fifth complete calendar quarter immediately preceding the benefit year. The first through fourth completed calendar quarters immediately preceding the benefit year extended from July 1, 2007 through June 30, 2008.

(continued)

(continued)

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