PHYLLIS Y. ELLIS 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NOT FOR PUBLICATION WITHOUT THE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

PHYLLIS Y. ELLIS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and CENTRAL LEWMAR,

Respondents.

_______________________________________

May 28, 2014

Before Judges Ashrafi and St. John.

On appeal from the Board of Review, Department of Labor, Docket No. 369,275.

Phyllis Y. Ellis, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).

Respondent Central Lewmar has not filed a brief.

PER CURIAM

Appellant Phyllis Y. Ellis appeals from a final decision of the Board of Review (Board) finding her disqualified for unemployment benefits under N.J.S.A. 43:21-4(c)(1), from April 12, 2009 through March 24, 2012, as she was disabled and unable to work. Our review of the record leads us to conclude that the Board's final decision was not consonant with relevant statutory provisions, and therefore we reverse and remand to the Board.

I.

Ellis was employed as a receptionist for Central Lewmar from November 3, 2003 to April 9, 2009 when she was laid off. Ellis applied for and received unemployment benefits from April 12, 2009 to October 30, 2010, totaling $24,543. On November 8, 2010, the Social Security Administration (SSA) found that Ellis had become disabled on April 9, 2009. The notice from the SSA informed Ellis that she had to be disabled for five full consecutive calendar months before becoming entitled to benefits and therefore was entitled to disability benefits in October 2009. In November 2010, the SSA awarded her $15,062 retroactively for disability benefits from October 2009 through October 2010. She was also afforded a prospective monthly benefit amount of $1,160.

In November 2011, the New Jersey Department of Labor sent Ellis a request for a refund of the $24,543 unemployment benefits paid to her, determining that she was not eligible for unemployment benefits from April 9, 2009 through March 24, 2012, as she was disabled and unable to work.

Ellis appealed to the Appeal Tribunal and on March 31, 2012, the Tribunal determined that Ellis was ineligible for benefits as she was unable to work pursuant to N.J.S.A. 43:21-4(c)(1). This section provides that an unemployed individual shall be entitled to receive benefits only if "[t]he individual is able to work, and is available for work, and has demonstrated to be actively seeking work, except as hereinafter provided in this subsection or in subsection (f) of this section." (Emphasis added).

The Appeal Tribunal determined that Ellis "was permanently disabled as of April 9, 2009 suffering from rheumatoid arthritis and seizures. [Ellis] was determined eligible for social security disability benefits effective October 2009 and was awarded those benefits on November 14, 2010." The Appeal Tribunal further found that "[Ellis] is liable for refund the sum of $24,543.00 received as [unemployment] benefits for the weeks ending April 18, 2009 through October 30, 2010, as provided by N.J.S.A. 43:21-16(d)." On July 11, 2012, the Board affirmed the decision and this appeal followed.

On appeal, Ellis argues that at the time that she was receiving unemployment benefits she still had the ability to work and that the Board erred in finding that she was disabled or diagnosed as disabled at the time unemployment benefits were granted.

II.

The unemployment benefits law requires that a claimant be available to work in order to qualify for benefits. N.J.S.A. 43:21-4(c)(1). However, that section of the statute makes an exception for persons who become disabled and unable to work while they are receiving unemployment benefits. Ibid. This exception requires that, apart from the disability, the person must be otherwise eligible for unemployment benefits. N.J.S.A. 43:21-4(f) provides:

The individual has suffered any accident or sickness not compensable under the workers' compensation law, and resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits under this chapter (without regard to the maximum amount of benefits payable during any benefit year) except for the inability to work and has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S. 43:21-3(d); provided, however, that benefits paid under this subsection (f) shall be computed on the basis of only those base year wages earned by the claimant as a "covered individual," as defined in N.J.S.A. 43:21-27.

As the Supreme Court explained in Butler v. Bakelite, 32 N.J. 154, 160 (1960), subsection 4(f) was enacted by the Legislature to fill a gap in the statutory protection for unemployed workers. See N.J.S.A. 43:21-26. However, those additional protections are subject to certain limitations.

[E]mployee welfare legislation in New Jersey commenced with the workmen's compensation act providing benefits for work-connected disability regardless of fault. The next step was the unemployment compensation law. . . . A condition of eligibility for benefits is that the unemployed individual be able to and available for work.

. . . From a social standpoint there remained gaps in the benefit scheme. There was no protection against wage loss resulting from . . . loss of unemployment compensation benefits because of physical inability to work . . . while out of work.

. . . Subsections (f) and (g) were added [to N.J.S.A. 43:21-4], the former providing that where an unemployed individual suffered a non-compensable accident or sickness resulting in his total disability to perform any work for remuneration and would be entitled to unemployment compensation benefits except for his inability to work, he should nonetheless receive such benefits, paid, however, from the state fund created under the temporary disability benefits law.

[Butler, supra, 32 N.J. at 160-61 (citations omitted).]

Here, claimant argues that, at the time that she was receiving unemployment benefits, she had the ability to work and the Board contends that she was disabled or diagnosed as disabled at the time unemployment benefits were granted. We appreciate the apparent contradictory contentions of each party to the application of N.J.S.A. 43:21-4(f). Claimant contends she was able to work, for purposes of unemployment benefits, even though we assume she represented to the SSA that she was permanently disabled and entitled to social security disability benefits. The Board contends she was disabled, unavailable to work and not entitled to benefits. N.J.S.A. 43:21-4(c)(1).

We therefore reverse the decision and remand to the Board for a factual finding and decision.

If the Board determines that claimant was disabled, she should nonetheless receive such benefits, paid, however, from the state fund created under the temporary disability benefits law for the five month waiting period imposed by SSA during which she was not paid social security disability benefits. Additionally, the Board should determine if she is required to refund to the Department of Labor the amounts paid to her during the period that she was receiving both social security disability benefits and, if the Board so determines, temporary disability payments. N.J.S.A. 43:21-30 provides in pertinent part, with regard to nonduplication of benefits:

(a) No [temporary disability] benefits shall be required or paid under this act for any period with respect to which benefits are paid or payable under any unemployment compensation or similar law, or under any disability or cash sickness benefit or similar law, of this State or of any other state or of the federal government . . . . (Emphasis added).

However, if the Board finds that claimant was not disabled, as set forth in N.J.S.A. 43:21-4(f), and she was available to work, absent other conditions precluding her right to unemployment benefits, claimant was entitled to such unemployment benefits.

Reversed and remanded. We do not retain jurisdiction.