Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[36 NJSuper Page 350] Plaintiff appeals from a decision and order of the Board of Review, Division of Employment Security, Department of Labor and Industry, denying his claim for unemployment compensation benefits because he could not establish 17 base weeks of employment in his base year. In so holding, the board rejected his contention that weeks during which he received disability benefits under his
employer's state-approved private plan should be counted along with the 14 weeks in which he actually worked and received more than $15 a week remuneration.
Plaintiff had been employed by defendant New Jersey Bell Telephone Company for more than 40 years. On June 30, 1953 he was retired on pension, having that month reached the age of 65. At the time of retirement plaintiff was earning $96 a week.
On September 28, 1953 plaintiff filed a claim for unemployment compensation benefits with the Division of Employment Security. His base year, determined in accordance with N.J.S.A. 43:21-19(c)(2), ran from September 21, 1952 to September 19, 1953. To succeed in his claim he was required by law (N.J.S.A. 43:21-4(e)) to establish, with respect to his base year, 17 base weeks as defined in N.J.S.A. 43:21-19(t):
"'Base week' means any calendar week of an individual's base year during which he earned in employment from an employer remuneration equal to not less than Fifteen Dollars ($15.00); * * *."
Plaintiff was intermittently absent from his job because of illness during several weeks in the period from September 21, 1952 to February 24, 1953, and continually thereafter until the termination of his employment on June 30, 1953. It is undisputed that during such periods of absence plaintiff was carried on the company's payroll as an employee. Nor is it disputed that the payments made to him during his illness were based upon his weekly pay: when he was absent for the entire week he was paid disability benefits in the same amount as his weekly pay, $96; when he was absent only part of the week, the benefits were prorated to that amount. In any case, plaintiff received a full $96 a week, minus income tax withheld, whether he was on the job or absent therefrom because of illness.
The disability benefits to plaintiff were made in accordance with the defendant company's "Plan for Employees' Pensions, Disability Benefits and Death Benefits." The plan has been in effect since 1913, with minor changes to keep it up-to-date. It
therefore antedated the adoption of the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq. , and currently complies with the requirements of that act, having been approved by the Division of Employment Security. N.J.S.A. 43:21-32. Section 6 of the company plan provides that all employees with more than two years of employment shall receive sickness disability benefits thereunder for designated periods of absence because of illness. These payments are on a graduated scale, running from four weeks of full pay and nine weeks of half-pay for those employed from two to five years, up to full pay for 52 weeks in the case of an employee who, like plaintiff, had been with the company for 25 years or more. The same section provides that employees "shall not be entitled to receive sickness disability benefits for time for which any wages are paid them by the Company." The company representative testified that employees with less than two years' service are covered by the state plan for disability benefits, those with more than two years' service being covered by the company's state-approved private plan.
Inasmuch as plaintiff's pension after his retirement on June 30, 1953 would have amounted to less than the sickness disability benefit of $96 a week, the company continued to pay that amount to him through September 22, 1953, when the reduced pension amount came into effect. It was then, on September 28, 1953, that plaintiff filed his claim for unemployment compensation benefits. The company thereupon reported to the Division of Employment Security that plaintiff had only 14 base weeks of employment in his base year. It did not count as weeks of employment those weeks when plaintiff was absent because of illness. The state agency accordingly sent plaintiff a notice of invalid claim on October 6, 1953 because there were less than 17 base weeks within his base year. He did not dispute the determination at the time, but accepted the 14 base weeks as a true record of his employment. It was only after his request for a predating of his claim from September 28 to June 9, 1953 was denied that he appealed, and in his appeal raised
the question as to the erroneous calculation of the number of base weeks of employment with which he should have been credited. After considering the appeal, the Appeal Tribunal of the Division of Employment Security affirmed the state agency's determination that the claim for unemployment ...