DAVID L. TATEM 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NOT FOR PUBLICATION WITHOUT THE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-0132-08T20132-08T2

A-0133-08T2

DAVID L. TATEM,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

ARAMARK CORRECTIONAL SERVICES

and ARAMARK EDUCATION,

Respondents.

______________________________

 
Argued telephonically September 25, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. 187,202.

David L. Tatem, appellant, argued the cause pro se.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent, Board of Review (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

Respondents Aramark Correctional Services and Aramark Education have not filed a brief.

PER CURIAM

In these matters, consolidated for the purpose of this opinion, David L. Tatem appeals from final decisions of the Board of Review (Board) determining he was ineligible for the receipt of disability benefits during unemployment, and requiring him to refund the benefits previously paid. In light of our standard of review, we conclude the final decisions of the Board were properly premised upon facts in the record and its determinations were consonant with relevant statutory provisions. Therefore, we affirm.

Tatem was employed as a cook for Aramark Correctional Services in Camden. He resigned in August 2007 to relocate to Tennessee. Tatem's claim for unemployment benefits was denied by a Deputy Director of the Division of Unemployment and Disability Insurance (Deputy), who determined Tatem was disqualified because he "left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a). Tatem did not appeal and that determination became final. N.J.S.A. 43:21-6(b)(1).

On September 9, 2007, Tatem was "rehired" by and began working as a cook for Aramark Education in Tennessee. Two and one-half weeks later he underwent surgery on his previously injured right shoulder. Tatem was disabled for three months. During the brief period of reemployment, Tatem earned approximately $700.

Tatem filed a request for disability benefits. Initially, he was paid $1,245.22, which was subject to a child support offset such that he actually received $598. When Tatem questioned the offset, a different Deputy realized Tatem had not satisfied the eligibility requirements to receive benefits. Tatem was informed of his ineligibility and advised he was required to refund the monies previously paid. Tatem appealed these determinations.

Following a telephonic hearing, in separate decisions, an appeals tribunal (tribunal) affirmed the Deputy's determinations concluding Tatem was ineligible for disability benefits because of his ineligibility for unemployment benefits, and he must repay any benefits received. Tatem appealed to the Board, which affirmed the tribunal's decisions.

Appeals from those two Board decisions followed. We ordered consolidation on March 10, 2009. Tatem asserts that when he applied for disability he received oral assurances that he was eligible for benefits. He delineates six telephone calls made to a local Department of Labor office. He also received correspondence calculating his weekly benefit amount and requesting additional information to continue his claim. Therefore, he believes he should not be required to refund the monies paid prior to receiving a subsequent notice of ineligibility.

The limited nature of our review of administrative decisions is well established. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In analyzing the Board's determinations, we remain mindful that an agency's grant of authority must "be liberally construed to enable the agency to accomplish the Legislature's goals." Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). A "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility," ibid., such that we defer to "[t]he agency's [statutory] interpretation . . . provided it is not plainly unreasonable." Merin v. Maglaki, 126 N.J. 430, 437 (1992).

After he left his New Jersey employment, Tatem was denied unemployment compensation. By resigning, he was disqualified from receiving benefits. N.J.S.A. 43:21-5(a). An individual is disqualified to receive unemployment benefits

[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, . . . and has earned in employment at least six times the individuals weekly benefit rate.

[N.J.S.A. 43:21-5(a).]

Tatem did not contest the Deputy's denial of unemployment benefits and that decision became final. N.J.S.A. 43:21-6(b)(1).

After a brief resumption of employment, Tatem submitted his request for temporary disability benefits. New Jersey's Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -56, is designed to "protect employees against the suffering and hardship generally caused by involuntary unemployment" resulting from illness or non-work related injury. N.J.S.A. 43:21-26; In re Scott, 321 N.J. Super. 60, 65-66 (App. Div. 1999), aff'd, 162 N.J. 571 (2000). Temporary assistance for unemployment caused by an otherwise noncompensable disability or an involuntary loss of employment is also available. The eligibility criteria for these benefits are intertwined. N.J.S.A. 43:21-4(f)(1) provides compensation to those individuals who "suffered any accident or sickness not compensable under the workers' compensation law . . . resulting in an individuals total disability" to perform employment. The provision makes receipt of temporary disability benefits dependent on eligibility to receive unemployment benefits. See Amico v. Bd. of Review, 49 N.J. 159, 172 (1967)("To obtain benefits an employee must: (1) be eligible and (2) not be disqualified.").

When the provisions of the statutes are read together, American Fire and Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 79-80 (2006), they provide that an individual who voluntarily terminates employment must work for four weeks to become eligible for benefits due to a non-work related disability. Here, Tatem voluntarily quit his New Jersey job, causing a disqualification from receipt of benefits. Thereafter, he obtained reemployment. However, his disqualifi-cation from unemployment benefits will not end until he worked for four weeks and earned at least six times his weekly benefit rate. N.J.S.A. 43:21-5(a). Unfortunately, Tatem had not met these qualifications prior to his disabling surgery, precluding his eligibility for benefits.

Once a person has been disqualified to receive unemployment benefits, the statue requires repayment of any benefits received:

When it is determined by a representative or representatives designated by the Director . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation . . . of a material fact . . . or (ii) for any other reason, has received any sum as benefits . . . while any conditions for the receipt of benefits imposed . . . were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person . . . shall be liable to repay those benefits in full.

[N.J.S.A. 43:21-16(d)(1).]

N.J.S.A. 43:21-16(d) mandates full recoupment of "unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

The Board is statutorily bound to follow the law, notwithstanding the inadvertent issuance of a notice of eligibility determination. Accordingly, no basis has been presented to intervene in its considered determinations.

Affirmed.

(continued)

(continued)

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A-0132-08T2

October 20, 2009