ANDREA CARTWRIGHT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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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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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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.A-0194-18T4
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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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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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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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