JOAN FLETCHER v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6160-07T26160-07T2

JOAN FLETCHER,

Appellant,

v.

BOARD OF REVIEW and

E. MISHAM & SONS, INC.,

Respondents.

_________________________________________________

 

Argued November 5, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from a Final Decision of the

Board of Review, Department of Labor, Docket No. 180,726.

Joseph Murray argued the cause for

appellant (Northeast New Jersey Legal

Services Corp., attorney; Mr. Murray,

of counsel and on the brief).

Alan C. Stephens, Deputy Attorney General,

argued the cause for respondent Board of

Review (Anne Milgram, Attorney General,

attorney; Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Mr. Stephens

on the brief).

Respondent E. Misham & Sons, Inc. has not

filed a brief.

PER CURIAM

Claimant, Joan Fletcher, was employed as a secretary and office worker by E. Misham & Sons, Inc. on September 8, 1964. She was injured at work in a fall and commenced receiving workers' compensation benefits effective February 10, 2006. Her compensation benefits ended on December 5, 2007. However, claimant was not authorized by her physician to return to work until February 14, 2008. While claimant was receiving workers' compensation benefits, in March 2006, Misham closed the Bayonne warehouse where claimant had worked. As a consequence, she had no position to which to return.

On February 24, 2008, claimant filed for unemployment compensation benefits. However, her claim was denied because she did not meet either the base year income requirements of N.J.S.A. 43:21-19(c)(1), applicable when the claimant has worked continuously up to the date of employment termination, or the alternative base year provisions of N.J.S.A. 43:21-19(c)(3), applicable when a period of disability has preceded the claim for unemployment benefits. Claimant appealed, and her appeal was denied following a hearing by an Appeal Tribunal, which determined:

the claimant filed for unemployment benefits more than two years after filing for Workers' Compensation benefits. Therefore, the claimant is not entitled to an Alternative base year for individuals claiming benefits after a period of disability in accordance with N.J.A.C. 12:17-5.6. In addition, the claimant did not establish 20 base weeks nor earn at least $7,200 during the base year of the unemployment claim dated 2/24/08. Therefore, the claim dated 2/24/08 is invalid under N.J.S.A. 43:21-4(c) and N.J.A.C. 12:17-5.6.

After the Appeal Tribunal's decision was affirmed by the Board of Review, claimant filed the present appeal from the Board's final administrative decision.

A determination of the present appeal turns on the issue of whether claimant met the alternative base year conditions of N.J.S.A. 43:21-19(c)(3), which provides:

With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the workers' compensation law . . . "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the period of disability was not longer than two years, if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and if the individual files a valid claim for unemployment benefits after the conclusion of that period. For the purposes of this paragraph, "period of disability" means the period from the time at which the individual becomes unable to work because of the compensable disability until the time that the individual becomes able to resume work and continue work on a permanent basis.

[Emphasis supplied.]

Pursuant to this provision, the alternative base period for claimant's claim was October 1, 2004 through September 30, 2005, when she was in fact working and met the income requirements of the statute. However, claimant's period of disability exceeded the requisite two-year period by four days. As a consequence, the State argues that claimant's unemployment compensation claim is statutorily barred.

Claimant, on the other hand, argues that since she collected workers' compensation benefits only from February 10, 2006 to December 5, 2007, she met the statutory requirements, because it reasonably can be inferred that she was "able to resume work and to continue to work on a permanent basis" at that time. Claimant further argues that the governing statute did not require that she file for benefits immediately following the conclusion of her period of disability, citing in that regard our decision in Gilliland v. Board of Review, 298 N.J. Super. 349, 354 (App. Div. 1997), in which we rejected the Board's position that the claimant had to file for unemployment benefits within thirty days of the end of the period of disability, and instead found the claimant's claim timely, although it was filed five months after he was released to return to work.

Claimant bears the burden of proof to establish her right to unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). As a consequence, she was required to establish to the Board's satisfaction that her period of disability was not longer than two years. N.J.S.A. 43:21-19(c)(3). Claimant failed to meet this burden, testifying at the hearing before the Appeal Tribunal and through her lawyer on appeal to the Board of Review that she was disabled as the result of a fall from February 10, 2006 until February 14, 2008 when her physician authorized claimant's return to work.

We recognize in this regard that claimant's workers' compensation benefits ceased as of December 5, 2007. We surmise that, because plaintiff was judged capable of returning to work, that her workers' compensation benefits were temporary in nature. N.J.S.A. 34:15-12 provides that "compensation shall be paid during the period of [temporary] disability." See also N.J.S.A. 34:15-38, stating that a calculation of the period of temporary disability shall encompass the period from "the day that the employee is first unable to continue at work by reason of the accident" up to "the first working day that the employee is able to resume work and continue permanently thereat." Moreover, the Supreme Court has observed that "[t]emporary disability benefits are payable until the employee is 'able to resume work,' N.J.S.A. 34:15-12 and -38."

We also note that N.J.A.C. 12:17-5.6(a)(2), the regulation implementing the alternative base year statutory provision states: "This section applies to individuals receiving Workers' Compensation for a period not to exceed two years." We assume that this provision was adopted in light of the provisions of N.J.S.A. 34:15-12 and -38 that we have just discussed, and that it does not seek to alter statutory language referring to the "period of disability," and not the receipt of Workers' Compensation benefits. To construe the regulation otherwise would render it ultra vires. Lourdes Med. Ctr. of Burlington County v. Bd. of Review, 197 N.J. 339, 378 (2009).

We lack the evidence that would permit us to determine why, in this particular case, workers' compensation benefits ceased more than two months before claimant was authorized by her treating physician to return to work. Nonetheless, we note claimant's admission before the Appeal Tribunal that she "was still going to doctors" after December 12, 2007 when she received her last workers' compensation check and her further statement that "after the checks stopped [in] December I was still going to doctors cause I was having trouble and the doctor released me on 2/14 of 08."

If claimant regarded the February 14 date as inaccurate and if, in claiming unemployment compensation benefits, she sought to rely on the date of the termination of her worker's compensation benefits as dispositive for purposes of calculating the alternative benefit year, it was her obligation to present evidence in support of that position. She did not. As a consequence, we find her claim to have been properly rejected. In light of our resolution of this issue, we do not address the question of the timeliness of claimant's unemployment benefits claim or the authority of the administrative agency to limit the period for filing a claim for unemployment benefits in these circumstances to four weeks following recovery. See N.J.A.C. 12:17-5.6(a)(1).

 
Affirmed.

This date is set forth in the findings of fact of the Appeal Tribunal. The State at other times gives a termination date of December 17, 2007. This discrepancy does not affect our decision in this matter.

We recognize that the Appeal Tribunal held that "claimant filed for unemployment benefits more than two years after filing for Workers' Compensation benefits." We deem that holding to have constituted an inadvertent misconstruction of the alternative base year statute, which conditions the use of an alternative base year to circumstances in which the period of disability is "not longer than two years." We will assume for purposes of this opinion that the statutory limitation was correctly set forth when denying claimant's claim.

(continued)

(continued)

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A-6160-07T2

January 25, 2010