STEVEN R. WILSON 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NOT FOR PUBLICATION WITHOUT THE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

STEVEN R. WILSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and RSM MAINTENANCE,

Respondents.

___________________________________

November 6, 2014

Argued October 15, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Board of Review, Department of Labor, Docket No. 416,563.

Steven R. Wilson, appellant pro se.

Kelly Lichtenstein, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lichtenstein, on the brief).

Respondent RSM Maintenance has not filed a brief.

PER CURIAM

Steven R. Wilson appeals from the Board of Review's May 16, 2013, order affirming the Appeal Tribunal's denial of his claim for unemployment benefits. We affirm.

Wilson had worked as a carpenter for the same employer for almost five years when, on January 10, 2011, he fell off a ladder and suffered serious and disabling back injuries. He underwent two spinal fusion surgeries to repair fractured vertebrae and herniated discs. He needed the second surgery after the first proved unsuccessful. As a result, his recovery time extended over two years. During this period of time, Wilson was unable to work. He received workers compensation benefits, which terminated in January 2013.

Wilson's physician cleared him for work on January 26, 2013, subject to several restrictions. He was told not to bend or climb, or to kneel for extended periods of time. He was also told to avoid lifting more than twenty-five pounds. Wilson sought reemployment, but his former employer declined, because of Wilson's restrictions. Wilson stated that absent those restrictions, he could have returned to his old job. Wilson filed his claim for unemployment benefits on January 27, 2013.

The deputy found Wilson ineligible for benefits. The Appeal Tribunal affirmed on April 16, 2013, after a telephonic hearing. Citing N.J.S.A. 43:21-4(e)(1),1 the Tribunal agreed with the deputy that Wilson lacked sufficient base weeks or sufficient base year wages to establish a valid claim. The Tribunal recognized that under N.J.A.C. 12:17-5.6, a person claiming benefits after a period of disability has the option of using an alternate base year "consisting of the first four of the most recent five completed calendar quarters preceding the date his or her disability began." However, a claimant may not utilize the alternative base year "[i]f the previous position is available, but the individual is no longer able to perform the duties of the position . . . ." N.J.A.C. 12:17-5.6. Also, the alternative base year provision only "applies to individuals receiving Workers' Compensation for a period not to exceed two years." Ibid. The Tribunal concluded that Wilson could not avail himself of the alternate base year because he was unable to perform his previous position, which was available; and he received workers' compensation benefits for more than two years. The Board affirmed on the basis of the record before the Tribunal.

On appeal, Wilson asks us to reverse the Board's order, based on the substantial financial hardship that he has experienced as a result of his injury, his absence from work during recovery, and his inability to find work with his current restrictions. We recognize his difficult personal circumstances. However, a claimant is not entitled to unemployment benefits unless he meets the statutory conditions of eligibility, and is not otherwise disqualified. Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 454-55 (1953). Of significance here, a claimant is eligible for benefits only if he has had sufficient earnings or wages during his "base year." N.J.S.A. 43:21-4(e), -19(c)(1). A "base year" generally consists of the first four of the last five complete calendar quarters immediately preceding an individual's benefit year, which is the 364 calendar days beginning when he files his claim. N.J.S.A. 43:21-19(c)(1) (defining "base year"); N.J.S.A. 43:21-19(d) (defining "benefit year").

We exercise a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J.197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. We also afford some deference to, although we are not bound by, an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J.534, 551 (2008). We may intervene when the agency's action is arbitrary, capricious, or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J.at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J.8, 27 (1994)).

Applying these standards, we discern no basis to disturb the Board's decision. Wilson was not eligible for benefits because (1) he lacked any wages during his base year that is, the first four of the last five calendar quarters before he filed for benefits; and (2) he did not qualify to utilize an alternate base year based on his disability under N.J.A.C.12:17-5.6, because he was unable to perform his previous position, and he received over two years of workers' compensation benefits.

Affirmed.

1 N.J.S.A. 43:21-4(e)(1) was deleted from the law in 2001. The Tribunal should have cited N.J.S.A. 43:21-4(e)(4). The language of the statute has changed, but the alterations have no bearing here.