JANE R. BONAMARTE v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6350-05T26350-05T2

JANE R. BONAMARTE,

Claimant-Appellant,

v.

BOARD OF REVIEW,

Respondent.

_________________________________

 

Submitted August 29, 2007 - Decided September 7, 2007

Before Judges A.A. Rodr guez and Parrillo.

On appeal from the Board of Review, State of New

Jersey, Department of Labor and Workforce Development,

Docket No. 110,388.

Jane R. Bonamarte, appellant pro se.

Anne Milgram, Attorney General of New Jersey,

attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John C. Turi,

Deputy Attorney General, on the brief).

PER CURIAM

Claimant Joan Bonamarte appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision redetermining her entitlement to unemployment benefits and her liability for a refund. We affirm.

The facts are not in dispute. Claimant worked for Ilford Imaging USA, Inc. (Ilford) from February 1999 through September 2004, and received six weeks of severance pay, totaling $6,417, in the fourth quarter 2004. She was next employed by Dynamic Imaging, L.L.C. (Dynamic) where she earned wages of $9,805.99 for ten weeks of work in the third quarter 2005.

Bonamarte filed a claim for unemployment benefits as of January 1, 2006. By doing so, she established a "benefit year", defined as "the 364 consecutive calendar days beginning with the day on, or as of, which [s]he first files a valid claim for benefits", N.J.S.A. 43:21-19(d), of January 1, 2006 through December 30, 2006. Claimant also established a "base year", which consists of "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)(1), of October 1, 2004 through September 30, 2005. Ibid.

Bonamarte's claim for unemployment benefits was valid as she was presumptively eligible having earned $9,805.99 from Dynamic to satisfy the alternative earnings test of N.J.S.A. 43:21-4(e)(4)(B). Accordingly, she collected unemployment benefits through the week ending March 25, 2006. However, in initially determining her maximum benefit amount, the Division of Unemployment Insurance (Division) erroneously included as part of her wages the severance pay Bonamarte received from Ilford. N.J.A.C. 12:17-8.7(b). Consequently, on April 17, 2006, the Division Director notified Bonamarte that as a result of monetary redetermination, her entitlement to benefits was reduced and that she was liable for a refund of $1,042 for benefits she collected for the weeks ending March 18 and 25, 2006. It was determined that Bonamarte's weekly unemployment benefit rate was $521, the maximum weekly benefit rate in 2006. N.J.S.A. 43:21-3(c); N.J.A.C. 12:15-1.2 as promulgated in 37 N.J.R. 5045(a) (December 19, 2005). Her maximum benefit amount was determined to be $5,210, i.e., her weekly benefit rate ($521) multiplied by the number of base weeks she established during her base year, which was ten. N.J.S.A. 43:21-3(d); N.J.A.C. 12:17-2.1.

Claimant appeals from the redetermination of her maximum benefit amount and the decision finding her liable for a refund. She argues that some of the wages she earned from her employment with Ilford and all of the wages she earned from her employment with Dynamic be used to determine her maximum benefit amount. She also argues that if liable for a refund, it should be for the amount she actually received ($938), net of the $104 withheld for income tax.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Ed. of Tp. of Neptune v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd., supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we are in accord with the Board's decision. While the receipt of severance pay did not bar Bonamarte from becoming eligible for benefits, it could not be used to determine her eligibility for or the amount she would receive as benefits. N.J.A.C. 12:17-8.7(b). Moreover, to utilize wages earned from Ilford would require the use of an alternate base year for which claimant does not qualify. The alternate base years set forth in the Unemployment Compensation Law apply only in those situations where a claimant "does not have sufficient qualifying weeks or wages in [her] base year to qualify for benefits". N.J.S.A. 43:21-19(c)(1). As noted, Bonamarte qualified for benefits because she had sufficient earnings during her base year to satisfy the alternative earnings test of N.J.S.A. 43:21-4(e)(4)(B). Thus, she is not entitled to use an alternate base year.

Lastly, claimant is liable for a refund of the gross amounts of the checks received for the weeks ending March 18 and 25, 2006, i.e., $1,042, because any amounts withheld from benefit checks "are considered paid to the claimant." N.J.A.C. 12:17-19.3(b). Bonamarte exhausted her maximum benefit amount when she received benefits for the week ending March 11, 2006. Thus, she was not entitled to the $1,042 in benefits she received for the weeks ending March 18 and 25, 2006, and she must therefore repay the overpayment. N.J.S.A. 43:21-16(d)(1); Bannan v. Bd. of Review, 299 N.J. Super. 671, 675 (App. Div. 1997).

Affirmed.

 

Under the alternative earnings test of eligibility set forth in N.J.S.A. 43:21-4(e)(4)(B), claimant would be eligible for benefits if she "earned remuneration [during her base year] 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", or October 1, 2005. N.J.S.A. 43:21-4(e)(4)(B). In Bonamarte's case, this amount was $6,200. N.J.A.C. 12:15-1.6 as promulgated in 37 N.J.R. 5045(a) (December 19, 2005).

On March 27, 2006, Bonamarte "began new work."

During her "base year", Bonamarte earned no regular wages from Ilford.

For claims filed in 2001 and after, a "base week" is "any calendar week during which the individual earned . . . remuneration not less than an amount 20 times the minimum wage in effect . . . on October 1 of the calendar year preceding the calendar year in which the benefit year commences." N.J.S.A. 43:21-19(t)(3). For calendar year 2006, that amount was $123. N.J.A.C. 12:15-1.5 as promulgated in 37 N.J.R. 5045(a) (December 19, 2005).

(continued)

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A-6350-05T2

September 7, 2007