ANDREA CARTWRIGHT v. BOARD OF REVIEW DEPARTMENT OF LABOR and SKC CO. CPAS, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0194-18T4

ANDREA CARTWRIGHT,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and SKC & CO. CPAS, LLC,

     Respondents.
___________________________

                    Submitted November 4, 2019 – Decided November 21, 2019

                    Before Judges Ostrer and Vernoia.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 142,654.

                    Andrea Cartwright, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Donna Arons, Assistant
                    Attorney General, of counsel; Dipti Vaid Dedhia,
                    Deputy Attorney General, on the brief).

                    Respondent SKC & Co. CPAs, LLC has not filed a
                    brief.
PER CURIAM

      Claimant Andrea Cartwright appeals from a Board of Review final

decision finding her ineligible for disability benefits during unemployment

under  N.J.S.A. 43:21-4(f)(1) from February 15, 2015 through March 28, 2015,

because she earned wages and otherwise certified she was able and willing to

work during that period. There is substantial credible evidence supporting the

Board's findings and claimant otherwise fails to demonstrate the Board's

decision is arbitrary, capricious, or unreasonable. We therefore affirm.

      Following the termination of her employment with SKC & Co. CPAs,

LLC in November 2014, claimant applied for and received unemployment

compensation benefits, which she collected until June 2015. On January 28,

2015, claimant delivered a child by cesarean section. Claimant did not apply

for disability benefits until July 6, 2015. A Division of Temporary Disability

Insurance deputy determined claimant was ineligible for temporary disability

benefits because she filed her application late without good cause. Following

claimant's appeal, the Appeal Tribunal affirmed the deputy's determination. The

Board subsequently affirmed the Appeal Tribunal's decision.

      Claimant appealed.    In a sua sponte order, we reversed the Board's

decision, finding that although claimant did not file her claim within "[thirty]


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                                       2
days after the commencement of the period of disability" as prescribed in

 N.J.S.A. 43:21-49(a)(2), the time period could be tolled or extended based on

equitable considerations. Cartwright v. Bd. of Review, No. A-3883-15 (App.

Div. Aug. 10, 2017) (order at 3). We determined the Board's finding claiman t

did not establish a basis allowing the late filing of her application for disability

benefits "was unreasonable and lacked fair support in the record." Id. at 7. More

specifically, we determined the Board did not consider the totality of the

circumstances, including claimant's testimony she was unaware she was eligible

for disability benefits, her employer's failure to provide information about her

eligibility despite its knowledge she was in the third trimester of her pregnancy

when her employment terminated, and the lack of evidence that her employer

posted the required notices advising its employees of their eligibility for

disability benefits. Ibid. We also found the employer's "failure to provide

claimant with the needed information . . . clearly [led] to the confusion that

caused [her] to file her . . . application late," id. at 4, and remanded for the Board

to determine "the amount of benefits claimant should receive," id. at 7.

      On remand, a deputy determined claimant was eligible for disability

benefits during unemployment from December 28, 2014, to February 14, 2015,

but was ineligible from February 15, 2015, to March 28, 2015, because she


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reported earning income commencing on February 15, 2015.            The deputy

explained that disability benefits during unemployment are paid only during

periods that an individual is "unable to perform any type of work," and since

claimant was able to work, and worked, following February 15, 2015, she was

not disabled following that date.

      Claimant appealed the deputy's decision. During the hearing before the

Appeal Tribunal, claimant testified that from February 15, 2015, through March

28, 2015, she started a business filing client tax returns because she had been

told by her employer that she was required to look for work while collecting

unemployment benefits.     She admitted earning income from her work and

certifying to the Division she was able and available to work during that period.

She explained that she did so because she was unaware she could have claimed

she was disabled.

      A Department of Labor examiner testified claimant was not entitled to

disability benefits during unemployment from February 15, 2015, through

March 28, 2015, because she "was working or receiving wages" and therefore

"did not meet the requirement that she be completely disabled from any work or

remuneration during that time period." The examiner explained that to qualify

for disability benefits during unemployment, a claimant must be "totally unable


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                                       4
to perform any work." In his closing statement, the examiner asserted that "[t]he

fact that [claimant] performed the work . . . demonstrates she was not totally

disabled," regardless of her intention or what she had been told about the

benefits.

      The Appeal Tribunal affirmed the deputy's determination claimant was

ineligible for the benefits from February 15, 2015, through March 28, 2015. The

Appeal Tribunal observed  N.J.S.A. 43:21-4(f)(1) provides that unemployed

individuals shall be eligible to receive disability benefits during unemployment

with respect to any week only if it appears "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." The Appeal Tribunal rejected claimant's testimony she could

not work during the period at issue because she "entered earnings during the

weeks in question when she indicated that she was able and available for work."

The Appeal Tribunal found that "to be eligible for disability benefits during

unemployment a claimant must be totally unable to perform any work" and, here,

claimant did not show she was unable to work between February 15, 2015, and

March 28, 2015. The Appeal Tribunal concluded claimant was ineligible for




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disability benefits during unemployment under  N.J.S.A. 43:21-4(f)(1) between

February 15, 2015 and March 28, 2015.

      The Board affirmed the Appeal Tribunal's determination. This appeal

followed.

      Our scope of review of an agency decision is limited. In re Stallworth,

 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison,  81 N.J. 571, 579

(1980)). In challenging an agency conclusion, the claimant carries a substantial

burden of persuasion, and the determination of the administrative agency carries

a presumption of correctness. Gloucester Cty. Welfare Bd. v. N.J. Civ. Serv.

Comm'n,  93 N.J. 384, 390-91 (1983). We also accord substantial deference to

the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ.

v. Neptune Twp. Educ. Ass'n,  144 N.J. 16, 31 (1996).

      We are also "obliged to defer to the Board when its factual findings are

based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd.

of Review,  197 N.J. 339, 367 (2009) (internal quotation marks and citations

omitted). Indeed, "[w]e are not permitted to review the case as though we were

the original factfinder and substitute our judgment for any disagreements we

might have with the Board." Ibid. "Rather, we must determine whether the

Board could reasonably have reached its conclusion based on the proofs." Ibid.


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We overturn an agency determination only if it is arbitrary, capricious,

unreasonable, unsupported by substantial credible evidence as a whole, or

inconsistent with the enabling statute or legislative policy. Barry v. Arrow

Pontiac, Inc.,  100 N.J. 57, 71 (1985).

      Although acknowledging she performed work and earned income from

February 15, 2015 through March 28, 2015, and certified to the Division she

was able and willing to work during those weeks, claimant asserts the Board

erred by determining she was ineligible for disability benefits during

unemployment for that period. She argues that despite her employment, income,

and representations, she was actually disabled and would not have worked,

earned income, or made the representations if she was aware she could have

claimed a disability as a result of the delivery of her child.       We are not

persuaded.

      We first note that claimant is not eligible for benefits under the Temporary

Disability Benefits Law,  N.J.S.A. 43:21-25 to 43:21-71, which is "designed to

protect persons in employment against wage loss due to nonoccupational

sickness or accident" by providing payment of benefits. N.J. Bell Tel. Co. v.

Bd. of Review,  78 N.J. Super. 144, 146 (App. Div. 1963). Under  N.J.S.A 43:21-

29(a), the disability of a covered individual "shall be compensable" if "the


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                                         7
disability is the result of the covered individual suffering an accident or sickness

not arising out of and in the course of the individual's employment … and

resulting in the individual's total inability to perform the duties of employment."

A "covered individual" is "any person who is in employment … or who has been

out of such employment for less than two weeks."  N.J.S.A. 43:21-27(b)(1).

      As the Appeal Tribunal correctly noted, claimant's employment ended on

November 10, 2014, and she gave birth on January 28, 2015. She qualified for

benefits as a covered individual under the Temporary Disability Benefits Law

only until November 24, 2014, two weeks following the termination of her

employment. Ibid. It was determined, and it is not disputed, that claimant's

pregnancy related disability began on December 28, 2014.1              The Appeal

Tribunal found claimant is not a "covered individual" entitled to benefits under

the Temporary Disability Benefits Law because she was not "out of . . .

employment for less than two weeks" when her disability began. Ibid. Rather,

her disability began more than six weeks after her employment ended. Benefits




1
  We rely on claimant's and the Board's agreement in their respective briefs that
claimant's pregnancy related disability began on December 28, 2014. We note
that the record on appeal does not include a decision, determination, or order to
that effect.
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may not be awarded "for any period of disability which did not commence while

the claimant was a covered individual."  N.J.S.A. 43:21-39(c).

      The Board adopted the Appeal Tribunal's factual findings regarding the

dates of claimant's employment, termination of employment, and period of

disability. We defer to those findings because they are supported by sufficient

credible evidence. Lourdes Med. Ctr.,  197 N.J. at 367. Claimant does not argue

otherwise.

      As the Board correctly determined, claimant's eligibility for disability

benefits during unemployment is governed by the Unemployment Compensation

Law,  N.J.S.A. 43:21-1 to 43:21-24.4, which provides benefits "for the worker

earning nothing, because he [or she] is out of work through no fault or act of his

[or her] own, until he [or she] can find employment." Yardville Supply Co. v.

Bd. of Review,  114 N.J. 371, 375 (1989) (quoting Schock v. Bd. of Review,  89 N.J. Super. 118, 125 (App. Div. 1965)). The law provides for the award of

disability benefits during unemployment, but under defined and limited

circumstances. See generally  N.J.S.A. 43:21-4.

       N.J.S.A.    43:21-4(f)(1)     authorizes    disability   benefits    during

unemployment to individuals suffering "any accident or sickness not

compensable under the workers' compensation law … and resulting in the


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individual's total disability to perform any work for remuneration." The burden

rests upon the claimant to establish his or her right to unemployment

compensation benefits. Patrick v. Bd. of Review,  171 N.J. Super. 424, 426

(App. Div. 1979).

      The   Division   qualified   claimant   for   disability   benefits   during

unemployment under  N.J.S.A. 43:21-4(f)(1) from December 28, 2014, when her

disability began, until February 14, 2015. 2 The Board determined claimant was

disqualified from the benefits from February 15, 2015, through March 28, 2015,

because during that period claimant worked, earned income, and certified she

was not disabled, but instead was able and willing to work.           The Board

concluded claimant did not suffer from a "total disability to perform any work

for remuneration" after February 15, 2015, and disqualified her from receiving

disability benefits during unemployment after that date. The Board's factual

findings are supported by substantial credible evidence; claimant testi fied to

those facts during the hearing. Thus, we discern no basis to reverse either the




2
  In their respective briefs on appeal the parties agree that claimant was deemed
eligible for disability benefits during unemployment under N.J.S.A . 43:21-
4(f)(1) from December 28, 2014, through February 14, 2015. The record on
appeal, however, does not include a decision or order to that effect.
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Board's factual findings or its conclusion that during the period at issue

defendant did not satisfy N.J.S.A. 43:21-4(f)(1)'s requirements.

      Claimant's contention she would not have worked during the period if she

knew she was otherwise qualified for benefits based on her pregnancy ignores

that she certified to the Division she was able and willing to work during the

period at issue and, as a matter of undisputed fact, she worked and earned

income during that time. Claimant does not allege that either her employer or

the Division advised her to misrepresent her ability and availability to work, and

the Board properly accepted the representations in her certifications.            In

addition, acceptance of claimant's argument would require a finding that lacks

support in the record: that she either misrepresented her ability and availability

to work in her weekly certifications to the Division or that she otherwise would

have misrepresented her ability and availability to work in her certifications.

      The law allowed claimant disability benefits during unemployment related

to her pregnancy and the delivery of her child, but did not mandate the benefits

when she otherwise did not satisfy the statutory requirements.  N.J.S.A. 43:21-

4(f)(1) sets forth the requirements for the receipt of the benefits and, based on

claimant's actions and admissions, she did not qualify for the benefits because

she was not totally disabled as a matter of fact from February 15, 2015, through


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                                        11 March 28, 2015.     The Board correctly determined she was not entitled to

disability   benefits   during   unemployment       under   the   Unemployment

Compensation Law,  N.J.S.A. 43:21-4(f)(1), during that time.

      We reject claimant's contention that in our prior decision reversing the

Board's determination that her application for the benefits was untimely, we

found her "eligible for disability benefits for the time period in question as she

relied on incorrect information provided by" her employer. Our prior decision

was limited to a determination that the Board erred by finding she filed the

application late. We did not address claimant's eligibility for disability benefits

during unemployment, but instead remanded for the Board to make that

determination in the first instance.

      Affirmed.




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