BESSIE KOHN v. BOARD OF REVIEW DEPARTMENT OF LABOR, and HARROGATE INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6293-09T1

BESSIE KOHN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and HARROGATE INC.,

Respondents.

______________________________

February 14, 2012

Submitted January 23, 2012 - Decided

Before Judges Ashrafi and Newman.

On appeal from the Board of Review, Department of Labor, Docket No. 268,145.

Bessie Kohn, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Harrogate, Inc., has not filed a brief.

PER CURIAM

Claimant Bessie Kohn appeals from the determination of the respondent Board of Review (the Board), denying her claim for unemployment benefits that was filed more than five years after she stopped working because of a disability and more than seven months after her orthopedist permitted her to return to work. We affirm.

Claimant needed a tendon transfer in her foot and had the surgery performed in September 2004. She was terminated from her employment at Harrogate where she had worked as an activities assistant at a nursing home. During her recovery, she filed and was approved for disability benefits through Social Security and private insurance. She was informed by her employer that the job would be kept open for a period of time prescribed by law. She was discharged, although there appears to be a disagreement over whether the time was in compliance with the law. The disagreement, however, is not relevant to the claim made here.

Not until May 26, 2009, was claimant cleared to return to employment. She searched for employment on her own but was unsuccessful. In December, she sought to secure unemployment compensation and was denied on January 3, 2010.

Following a telephonic hearing, the appeal tribunal determined that her claim was invalid because she did not have sufficient base weeks of wages for the five quarters prior to seeking unemployment benefits. The Board affirmed the appeal tribunal's decision, but predicated its denial of unemployment compensation benefits on an alternate basis. The Board based its decision on claimant's failure to file for unemployment benefits more than four weeks after she was deemed fit to return to work and without good cause pursuant to N.J.A.C. 12:17-5.6(a)1.

On appeal, claimant argues that she should be eligible for unemployment benefits because the Board's decision was not correct. She contends that she was never provided with any notice by the State, her former employer or her private disability insurer of any time frame within which to apply for unemployment benefits. She asserts that she should not be penalized when she searched for employment after she was cleared to work and that should suffice to constitute good cause. We disagree.

N.J.S.A. 43:21-19(c)(1) defines a base year for eligibility for unemployment benefits 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(d) defines "benefit year" as:

the 364 calendar days beginning with the day on, or as of, which [a claimant] first files a valid claim for benefits . . . .

The minimum wage determination in factoring claimant's benefit year, 2010, under N.J.S.A. 43:21-4(4)(B) was $7,200.

Claimant did not establish twenty base weeks of employment within the regular base year. N.J.S.A. 43:21-4(e)(4)(A); N.J.S.A. 43:21-19(t)(3); N.J.S.A. 43:21-19(c)(1). Further, she did not earn "remuneration not less than the amount one thousand times the minimum wage in effect . . . " during the base year of $7,200. N.J.S.A. 43:21-4(e)(4)(B); N.J.A.C. 12:15-1.6. Since she was disabled in September 2004, she had no base year earnings from employment before rejection of her claim for unemployment benefits on January 3, 2010. Consequently, she was ineligible for filing during the regular base year.

Claimant did receive temporary disability benefits. With respect to that, the legislature in 1991 ameliorated the definition of the base year and amended N.J.S.A. 43:21-19(c) to provide an alternative "base year" for those individuals who find their jobs no longer available after a period of disability during which they qualified either for temporary disability or worker's compensation benefits. Under the amendment, N.J.S.A. 43:21-19(c)(2) defined the alternative base year as follows:

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 Temporary Disability Benefits 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 employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and the individual files a valid claim for unemployment benefits after the conclusion of that period.

Applying this formula, the alternative base period for her claim was April 1, 2003 through March 31, 2004. See N.J.S.A. 43:21-19(c)(2).

The statute does not provide a deadline for filing upon the conclusion of the period of disability but provides as follows under N.J.A.C. 12:17-5.6(a)(1):

This section applies only to those individuals whose employment is not available at the conclusion of the disability period, provided the individual files his or her claim within four weeks of recovery, except where he or she has shown good cause as defined at N.J.A.C. 12:17-4.1 for filing a claim after four weeks.

N.J.A.C. 12:17-4.1(b) defines "good cause" as "any situation which was substantial and prevented the claimant from reporting . . . ."

It is clear that claimant did not file a benefit claim within the four-week period but delayed doing so for almost seven months. Her searching for work did not constitute good cause to excuse this late attempt to file for benefits. Claimant's effort to shift the burden to the State to have notified her of the time period is disingenuous. The State was unaware of when she was cleared to work by her orthopedist as of May 26, 2010. If anyone had the incentive to seek compensation at that point in time, it would have been claimant. She could not excuse her failure to do so by placing an onus on the State to provide notice when they had no knowledge of her work status.

We discern no infirmity, constitutional or otherwise, in the four-week time limitation and the good cause standard as applied by the Board. Nor does the regulation as interpreted by the Board result in an automatic bar to a claimant's effort to seek unemployment compensation. Simply put, there was no showing of good cause provided by claimant to relieve her of the four-week filing limitation. The Board properly denied her claim.

Affirmed.