BRUCE A. CYMANSKI v. BOARD OF REVIEW, and SHORELINE GRADING AND EXCAVATING INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6679-06T26679-06T2

BRUCE A. CYMANSKI,

Appellant,

v.

BOARD OF REVIEW, and SHORELINE

GRADING AND EXCAVATING INC.,

Respondents.

_______________________________

 

Submitted September 2, 2008 Decided

Before Judges Payne and Alvarez.

On appeal from the Board of Review, Department of Labor, Docket No. 151,590.

Bruce Cymanski, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief.)

Respondent Shoreline Grading and Excavating, Inc., has not filed a brief.

PER CURIAM

This is claimant Bruce Cymanski's appeal from an affirmance by the Board of Review of the Department of Labor (Board) of the decision of an appeal tribunal denying him disability benefits during unemployment. We also affirm.

Cymanski filed a claim for unemployment benefits on February 4, 2007. His unemployment claim was denied pursuant to N.J.S.A. 43:21-5(a) on the basis that he left work voluntarily without good cause attributable to the work. Cymanski filed his appeal from that decision beyond the required deadline and was not able to establish good cause for the delay. Cymanski pursued the matter until finally, on September 25, 2007, we dismissed his appeal of the denial of his unemployment claim.

Cymanski worked intermittently as a laborer for Shoreline Grading and Excavating, Inc., (Shoreline) from April 6, 2006, until February 2, 2007, when he left voluntarily. On March 11, 2007, he became too disabled to work for reasons unrelated to his employment with Shoreline. His claim for disability benefits followed.

On May 23, 2007, the Deputy for the Director of the Division of Temporary Disability Insurance (Deputy) held Cymanski ineligible for disability benefits during unemployment, an additional claim to the unemployment claim, because of the prior finding on the unemployment claim that he voluntarily left work. Cymanski appealed to the Appeal Tribunal, which affirmed the Deputy's decision. He then appealed to the Board, which on July 24, 2007, affirmed the Appeal Tribunal's decision.

The basis for the Appeal Tribunal's decision was the Deputy's determination that, as found in the unemployment benefits decision, Cymanski had left employment voluntarily without good cause attributable to the work. Unfortunately for Cymanski, he can receive disability benefits pursuant to N.J.S.A. 43:21-4(f), which provides for benefits for individuals who suffer a disabling injury after having been unemployed for fourteen or more days, only if he is otherwise qualified for unemployment benefits. Butler v. Bakelite, 32 N.J. 154, 161 (1960). When an individual has left work voluntarily without good cause attributable to such work, he is disqualified from benefits until he is reemployed, works for four weeks, and has earned at least six times his weekly benefit rate. N.J.S.A. 43:21-5(a). Therefore, the Appeal Tribunal concluded that although Cymanski suffered a disabling injury more than fourteen days after becoming unemployed, he was disqualified for benefits because he was previously found to have left work voluntarily without good cause attributable to the work and his subsequent wages were insufficient to remove the disqualification.

In his pro se brief, Cymanski's entire argument is as follows:

ARGUMENT

CLAIMANT DID NOT LEAVE HIS EMPLOYMENT WITH SHORELINE GRADING & EXCAVATING INC., AND THE EMPLOYER FILED A FALSE STATEMENT ABOUT THE CLAIMANT.

N.J.S.A. 43:21-16(b)(1). AN EMPLOYING UNIT OR ANY OFFICER OR AGENT OF AN EMPLOYING UNIT OR ANY OTHER PERSON WHO MAKES A FALSE STATEMENT OR REPRESENTATION, KNOWING IT TO BE FALSE, OR WHO KNOWINGLY FAILS TO DISCLOSE A MATERIAL FACT, TO PREVENT OR REDUCE THE PAYMENT OF BENEFITS TO ANY INDIVIDUAL ENTITLED THERETO OR TO AVOID BECOMING OR REMAINING SUBJECT HERE TO OR TO AVOID OR REDUCE ANY CONTRIBUTION OR OTHER PAYMENT REQUIRED FROM AN EMPLOYING UNIT UNDER THIS CHAPTER (R.S. 43:21-1 ET SEQ.)

CLAIMANT HAS COMPLIED WITH N.J.S.A. 43:21-6 BASED ON THE DATES SHOWN ON DOCUMENTS, 2a, 3a, 4a, 5a, 6a, 6b, 7a, 8a, 8b, 9a, 9b, 10a, AND 11a. THEREFORE N.J.S.A. 43:21-6 DOES NOT APPLY, AND SHOULD NOT BE GROUNDS FOR DENIAL IN THIS CASE, AND SHOULD BE OVERTURNED.

As the State suggests, it is not clear whether Cymanski is appealing on the basis that the initial unemployment determination should be vacated because his delay was inadvertent, or if he is appealing the disability denial itself. If his appeal is of the original unemployment determination, obviously, we cannot revisit that issue in light of our prior dismissal of his appeal.

Assuming the appeal relates to the disability claim, we note that a "strong presumption of reasonableness must be accorded [to an] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997) (citing City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

It was not only reasonable for the agency to rely upon the prior determination as to unemployment, they were statutorily bound to do so. They could not consider the nearly contemporaneous claim of disability on a separate basis once Cymanski was denied unemployment benefits on the grounds that he voluntarily left his employment. Accordingly, we must concur with the Board's decision.

Affirmed.

 

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A-6679-06T2

September 25, 2008