LINDA P. GIORELLA 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NOT FOR PUBLICATION WITHOUT THE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-0

LINDA P. GIORELLA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and ADDUS HEALTHCARE, INC.,

Respondents.

___________________________________________

May 9, 2014

Submitted May 5, 2014 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket No. 409,886.

Linda P. Giorella, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief).

Respondent Addus Healthcare, Inc. has not filed a brief.

PER CURIAM

Linda P. Giorella appeals from a final determination of the Board of Review (Board), dated March 26, 2013, affirming the decision of an Appeal Tribunal that she was ineligible for unemployment benefits. For the reasons that follow, we affirm.

Giorella was employed by Addus Healthcare, Inc. from March 20, 2012, until August 18, 2012. On September 16, 2012, she filed a claim for unemployment benefits. Giorella's base year was determined to be July 1, 2011, through June 30, 2012, during which she established fourteen weeks of earnings and total wages of $23,363.22. She received unemployment benefits until her claim was exhausted on December 29, 2012.

Thereafter, Giorella applied for extended unemployment compensation under the Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, 122 Stat. 2353 (the EUCA).1 A deputy director of the Division of Unemployment Insurance found that Giorella was not eligible for extended benefits because she did not have sufficient base year weeks or wages. Giorella appealed from the deputy's determination to the Appeals Tribunal, which conducted a hearing and issued a decision affirming the deputy's determination.

Giorella then appealed to the Board, which rendered a final decision upholding the Appeal Tribunal's finding that Giorella was not entitled to extended benefits.

On appeal, Giorella argues that her eligibility for extended benefits should have been calculated based on an alternative base year that would include wages earned prior and subsequent to the expiration of the regular base year.

The final decision of an administrative agency may not be disturbed on appeal unless it has been shown to be arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Therefore, our review of a decision of an administrative agency is limited to the following inquiries:

(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.

[Id. at 211 (quoting Harms Constr., supra, 137 N.J. at 27).]

Having thoroughly reviewed the record in light of that standard, we conclude that the Board's final decision must be affirmed.

N.J.S.A. 43:21-19(c)(1) defines the term "base year" to mean

the first four of the last five completed calendar quarters immediately preceding an individual's benefit year.

With respect to a benefit year commencing on or after July 1, 1995, if an individual does not have sufficient qualifying weeks or wages in his base year to qualify for benefits, the individual shall have the option of designating that his base year shall be the "alternative base year," which means the last four completed calendar quarters immediately preceding the individual's benefit year; except that, with respect to a benefit year commencing on or after October 1, 1995, if the individual also does not have sufficient qualifying weeks or wages in the last four completed calendar quarters immediately preceding his benefit year to qualify for benefits, "alternative base year" means the last three completed calendar quarters immediately preceding his benefit year and, of the calendar quarter in which the benefit year commences, the portion of the quarter which occurs before the commencing of the benefit year.

N.J.S.A. 43:21-19(d) defines the term "benefit year" as

the 364 consecutive calendar days beginning with the day on, or as of, which [a claimant] first files a valid claim for benefits, and thereafter beginning with the day on, or as of, which the individual next files a valid claim for benefits after the termination of his last preceding benefit year.

Because Giorella filed her initial claim on September 16, 2012, her "regular base year" was July 1, 2011, through June 30, 2012, andqualified herfor ordinarybenefits becauseher earnings,$23,363.22, exceeded1,000 timesthe minimumwage. See N.J.A.C. 12:17-5.1.

Giorella argues that an alternative base year of March 20, 2012, through August 16, 2012, be utilized for determining her eligibility for extended benefits. The provision providing for the designation of an alternative base year is only available if the claimant's wages are insufficient to qualify for ordinary benefits. N.J.S.A. 43:21-19(c)(1). The Act specifically requires that extended benefits be calculated with respect to the earnings and the weeks worked in the base period for regular compensation. 26 U.S.C.A. 3304, note Pub. L. No. 110-252, 4001(d)(2)(A), Stat. 2353, 2354.

The Boardcorrectly determinedthat Giorelladid notqualify forextended benefitsbecause shedid nothave sufficient weeks or wages in the base year. Changing Giorella's base year is not permitted, asshe qualifiedfor ordinarybenefits andis therefore precluded from utilizing the alternative calculation.

Affirmed.

1 The Act appears as a note to 26 U.S.C.A. 3304, which it amends.