STEVEN P. EDELSCHEIN v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6295-09T3

STEVEN P. EDELSCHEIN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent.

_________________________

SubmittedMay 31, 2011 Decided June 9, 2011

Before Judges Reisner and Sabatino.

On appeal from the Board of Review, Department of Labor, Docket No. 227,432.

Steven P. Edelschein, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Steven P. Edelschein appeals from an August 6, 2010 final decision of the Board of Review denying his claim for disability during unemployment benefits. We affirm.

I

Claimant lost his job in June 2008. According to his brief, he collected unemployment benefits from approximately June 2008, when he last worked, through "on or about the middle of March 2010," when his unemployment benefits "maxed out." In late March 2010, he had knee replacement surgery. He then applied for "temporary disability during unemployment" benefits on March 28, 2010.1 See N.J.S.A. 43:21-4(f). The claim was denied and he administratively appealed the denial. At a hearing on May 24, 2010, claimant admitted that he had not worked during the base year period of October 1, 2008 to September 30, 2009, and that he remained unemployed at the time of the hearing.

In a written decision dated May 26, 2010, the appeals examiner upheld the denial. As the examiner explained, the unemployment compensation statute creates a series of alternative "thresholds" on which a claim for benefits can be based. See N.J.S.A. 43:21-4. However, all of those thresholds require that the applicant have worked during a base year, which is either measured by the number of weeks or hours worked, or the amount of income earned. See N.J.S.A. 43:21-19(c) (defining base year); N.J.S.A. 43:21-19(t)(2) (defining base week); N.J.A.C. 12:15-1.6 (defining the alternative earnings test). Because claimant did not work at all, and had no earnings from employment during any of the possible time periods on which his claim could have been based, his claim was denied. In its August 6, 2010 decision, the Board of Review affirmed that determination.

II

The unemployment benefits law requires that a claimant be available to work in order to qualify for benefits. N.J.S.A. 43:21-4(c). However, the statute makes an exception for persons who become disabled and unable to work while they are receiving unemployment benefits. Ibid. This exception, set forth in N.J.S.A. 43:21-4(f), requires that, apart from the disability, the person must be otherwise eligible for unemployment benefits. Subsection 4(f) defines an eligible disabled person as follows:

The individual has suffered any accident or sickness not compensable under the workers' compensation law, and resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits under this chapter (without regard to the maximum amount of benefits payable during any benefit year) except for the inability to work and has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S.43:21-3(d); provided, however, that benefits paid under this subsection (f) shall be computed on the basis of only those base year wages earned by the claimant as a "covered individual," as defined in [N.J.S.A. 43:21-27].

[Emphasis added.]

N.J.S.A. 43:21-3(d), sets a time limit on the number of weeks during which a covered individual may receive regular unemployment benefits. Thus, if the applicant has already "maxed out" his or her regular unemployment benefits, the applicant cannot continue receiving unemployment benefits simply by providing proof that he or she has now become disabled. Rather, the individual must re-qualify for benefits.

As the Supreme Court explained in Butler v. Bakelite, 32 N.J. 154, 160 (1960), subsection 4(f) was enacted by the Legislature to fill a gap in the statutory protection for unemployed workers. See N.J.S.A. 43:21-26. However those additional protections are subject to certain limitations.

[E]mployee welfare legislation in New Jersey commenced with the workmen's compensation act providing benefits for work-connected disability regardless of fault. The next step was the unemployment compensation law. . . . A condition of eligibility for benefits is that the unemployed individual be able to and available for work.

. . . From a social standpoint there remained gaps in the benefit scheme. There was no protection against wage loss resulting from . . . loss of unemployment compensation benefits because of physical inability to work . . . while out of work. . . . Subsections (f) and (g) were added [to N.J.S.A. 43:21-4], the former providing that where an unemployed individual suffered a non-compensable accident or sickness resulting in his total disability to perform any work for remuneration and would be entitled to unemployment compensation benefits except for his inability to work, he should nonetheless receive such benefits, paid, however, from the state fund created under the temporary disability benefits law.

[Butler, supra, 32 N.J. at 160-61 (emphasis added; citations omitted).]

As the Court noted, except for being unable to work due to a disability, the person must meet the eligibility requirements for receiving unemployment benefits. Ibid.; see N.J.S.A. 43:21-4(f)(1). For non-agricultural workers, an applicant for unemployment benefits must meet the following requirements for prior work or earnings:

(4) [E]xcept as otherwise provided in paragraph (5) of this subsection [concerning agricultural workers], the individual has, during his base year as defined in [N.J.S.A. 43:21-19(c)]:

(A) Established at least 20 base weeks as defined in paragraphs (2) and (3) of [N.J.S.A. 43:21-19(t)]; or

(B) If the individual has not met the requirements of subparagraph (A) of this paragraph (4), earned remuneration not less than an amount 1,000 times the minimum wage in effect . . . on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $ 100 if not already a multiple thereof.

. . . .

(6) The individual applying for benefits in any successive benefit year has earned at least six times his previous weekly benefit amount and has had four weeks of employment since the beginning of the immediately preceding benefit year. This provision shall be in addition to the earnings requirements specified in paragraph (4) or (5) of this subsection, as applicable.

[N.J.S.A. 43:21-4(e)(4)(A) and (B), - 4(e)(6).]

Here, because claimant had not worked since June 2008, he had insufficient base weeks or earnings to support his claim. That is, he did not have enough weeks of employment, or had not earned enough income, during the applicable base year to qualify either for regular unemployment benefits or for "disability during unemployment" benefits.

On this appeal, claimant argues that, while he was employed, he paid into both the temporary disability fund and the unemployment fund and therefore one or the other of those funds should provide benefits to tide him over during his period of disability. We appreciate the difficulty of his situation. However, "[u]nemployment benefits are not allowable unless the claimant meets the conditions for 'eligibility' provided in [N.J.S.A.] 43:21-4." Krauss v. A. & M. Karagheusian, 13 N.J. 447, 454-55 (1953). Like the Board, we are bound to follow the laws as written by the Legislature, and claimant simply does not qualify under the statute providing disability during unemployment benefits.

Affirmed.

1 The exact date on which claimant's regular unemployment benefits ran out is not in the record. However, his brief represented that his "[u]nemployment benefits were maxed out on or about the middle of March 2010." We infer that he was no longer receiving regular unemployment benefits at the time of his March 28, 2010 application. Likewise, the exact date of his surgery is not in the record, but at the May 24, 2010 hearing, claimant testified that "as of today it's been eight weeks since my surgery." Hence, we infer that the surgery took place around March 24, 2010.