PAULA NOVAKOWSKI v. BOARD OF REVIEW DEPARTMENT OF LABOR and HORIZON BLUE CROSS/BLUE SHIELD June 2, 2011 â¬

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5334-09T4

PAULA NOVAKOWSKI,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and HORIZON BLUE

CROSS/BLUE SHIELD,

Respondents.

___________________________________________

Submitted June2, 2011 DecidedJune 20, 2011

Before Judges Ashrafi and Newman.

On appeal from the Board of Review, Department of Labor, Docket No. 247,418.

Paula Novakowski, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Horizon Blue Cross/Blue Shield has not filed a brief.

PER CURIAM

Appellant Paula Novakowski appeals from a May 25, 2010 order entered by the Board of Review affirming the denial of emergency unemployment compensation benefits.

The relevant facts may be summarized as follows. Appellant's employment with Horizon Blue Cross/Blue Shield (Horizon) terminated on March 26, 2009. She filed a regular claim for unemployment compensation benefits on March 29, 2009.

Appellant was issued a check by Horizon on April 9, 2009, in the amount of $821.62 representing $1,384.62 for unused "pool time" after withholding applicable taxes. According to appellant, "pool time" is similar to personal leave, vacation, or sick time in that it accrues to the employee and the employee may be reimbursed for unused pool time. Appellant was owed this time, but in spite of the anticipated reimbursement, her employer advised her by letter that she was terminated as of March 26, 2009. Appellant did not cash the April 9, 2009 check. Payment was stopped on the check, and a replacement check was issued to appellant on August 28, 2009 in the amount of $816.57. Appellant received unemployment benefits until July 11, 2009 when she exhausted her entitlement.

On July 12, 2009, appellant sought Extended Unemployment Compensation Benefits (EUC) under the Emergency Unemployment Compensation Act of 2008 (the Act), Pub. L. No. 110-252, 4001,Title IV, 122 Stat. 2323, 2353-57 (2008).1 Under the Act, EUC will be paid to individuals who: 1) "have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year (excluding any benefit year that ended before May 1, 2007)"; 2) "have no rights to regular compensation or extended compensation with respect to a week under such law or any other State unemployment compensation law or to compensation under any other Federal law"; and 3) are "not receiving compensation with respect to such week under theunemployment compensation law of Canada." Pub. L. No. 110-252, 4001(b), Title IV, 122 Stat. 2323, 2353.

Section 4001(d)(2) of the Act provides in relevant part:

the terms and conditions of the State law which apply to claims for regular compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof, except --

(A) that an individual shall not be eligible for emergency unemployment compensation under this title unless, in the base period with respect to which the individual exhausted all rights to regular compensation under the State law, the individual had 20 weeks of full-time insured employment or the equivalent in insured wages, as determined under the provisions of the State law implementing section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970 ( 26 U.S.C. 3304 note).

[(Emphasis added).]

Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970,2 states that "the equivalent in insured wages shall be earnings covered by the State law for compensation which exceed 40 times the individual's most recent weekly benefit amount."

Thus, for appellant to be eligible for EUC, she must have earnings in twenty base weeks of employment, or have earned forty times her weekly benefit rate of $582, or $23,280. See 26 U.S.C.A. 3304, Pub. L. No. 110-252, 4001(d)(2), Title IV, 122 Stat. 2323, 2354.

The regular "base year" is defined by statute 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(c)(1). N.J.S.A. 43:21-19(d) further defines 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."

Appellant filed her claim for unemployment benefits on March 29, 2009, which established a base year of October 1, 2007 through September 30, 2008. She collected weekly benefits of $582 over a period of fifteen weeks until her claim was exhausted on July 11, 2009. There are no provisions in the Unemployment Compensation Law permitting a claim to be filed once an initial claim is filed and benefits exhausted.

On November 23, 2009, the Appeal Tribunal found her ineligible for EUC and denied her claim. The Appeal Tribunalbased its decision on the fact that during the base year, sheonly accumulated fifteen weeks of employment, and her earningsof $13,147.39 did not satisfy the earnings requirement. On

May 25, 2010, the Board of Review agreed and affirmed the Appeal Tribunal's decision. We now affirm.

As an initial matter, we agree with the Board that a determination that appellant's base year was from October 1, 2007 through September 30, 2008 warrants affirming the decision.

Appellant argues, however, that her base year should have been the calendar year 2008 based on the purported extension of her employment to April 10, 2009 when the payment for "pool time" was made. She maintains this payment continued her employment.3 Under this contention, she asserts that she would have satisfied the requirements to be eligible for EUC.

We disagree. N.J.A.C. 12:17-8.8, Salary continuation through date of termination, provides:

(a) An employer may elect to continue wage or salary payments and forego the services normally performed by the employee through the date of termination provided for by contract or other agreement. A claim filed by an individual receiving such payments shall be invalid and he or she shall be ineligible for benefits through the date of termination of contract or other agreement. However, salary continuation payments may be used to establish a claim for benefits after the period for which the individual has received such payments.

Although a person receiving continuation pay is not eligible for benefits because she is not unemployed, such payments may be used to establish benefits in a subsequent base year once the payments have ended. In Darby v. Board of Review, 359 N.J. Super. 479 (App. Div.), certif. denied, 177 N.J. 494 (2003), the appellant, to fully vest her pension, was permitted to remain on active payroll status for just over one year through May 31, 2002. Id. at 480-482. Under the separation agreement, she received a gross amount of $69,511.30, which was payable in bi-weekly payments of $2,242.30. Id. at 480-81. Acknowledging that Darby's separation date was May 31, 2002, this court affirmed the Board's decision holding the claim invalid under N.J.A.C. 12:17-8.8, as she was receiving continuation pay in lieu of services and was, therefore, not unemployed. Id. at 483-84. In our ruling, we cited to the regulation as allowing continuation payments to establish a benefit claim at a later date once the payments had ended. Ibid.

Unlike Darby, appellant was not receiving continuing payments from Horizon within the meaning of N.J.A.C. 12:17-8.8(a) because she was terminated as of March 26, 2009. The lump sum payment in a check dated April 9, 2009, consisting of accrued "pool time," was not continuation pay, and did not extend her employment to April 10, 2009. N.J.A.C. 12:17-8.8(a).

By the same token, had the "pool time" payment qualified as continuation pay, appellant would not have been unemployed and would have been ineligible for unemployment benefits through April 10, 2009. That was not the case because appellant here collected unemployment benefits beginning March 29, 2009, representing the first week that she filed for benefits and wasunemployed. See N.J.S.A. 43:21-4(a). Thus, the lump sum payment of $1,384.62 for "pool time" did not result in establishing a new base year, and appellant's base year remained, as found by the Appeal Tribunal and the Board of Review, to be October 1, 2007 through September 30, 2008. N.J.S.A. 43:21-19(c)(1).

The final decision of an administrative agency may not be disturbed on appeal unless it was arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In reviewing a provision of the Unemployment Compensation Law, our responsibility is to construe a statute as written and "not to write into it conditions or qualifications. That is a legislative function." Div. of Unemp't & Disability Ins. v. Bd. of Review, 188 N.J. Super. 71, 76-77 (App. Div. 1983); Dep't of Labor & Indus. v. Rosen, 44 N.J. Super. 42, 45 (App. Div. 1957). Although we recognize that one of the purposes of the Act is to ameliorate the suffering of those who lose their employment, we are not free to extend the application of the statute to factual circumstances not covered by its provisions. See Div. of Unemp't & Disability Ins., supra, 188 N.J. Super. at 76-77. Consequently, we are persuaded that the Board's decision, affirming the Appeal Tribunal, holding appellant ineligible for EUC benefits under the Act was reasonable and in compliance with the governing statutes.

Affirmed.

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

2 This Act also appears as a note to and amends 26 U.S.C.A.

3304.

3 Appellant, in her reply brief, contends that she expected to be called back to work, but did not receive a call from Wendy Lyons of Human Resources on March 27, 2009, as promised. She also asserts that Ms. Lyons assured her that she was still employed by the regular bi-weekly payroll. These contentions are presumably made in support of her argument to change her base year and why, under the law, she had to file her unemployment compensation claim within three days of March 26, 2009. None of these contentions were presented or supported by testimony before the Hearing Examiner when appellant was represented by counsel. We will not consider matters outside of the record in reviewing the Board's decision. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2011).