Allcorn, Kole and Gaulkin. The opinion of the court was delivered by Kole, J.A.D. Allcorn, J.A.D. (dissenting).
[139 NJSuper Page 397] Marie Snedeker (claimant) was employed by Leinoff Associates, an employer covered by the State Temporary Disability Benefits Plan (State Plan), from February 28, 1972 to March 29, 1973 at a salary of $150 a week plus expenses. Concurrent with this employment she worked three nights a week and Saturdays as a salesgirl at Gimbel Brothers, Inc. (Gimbel), a private plan employer associated with the Store Workers Security Plan (Store Plan) at a salary of $52.43 a week.*fn1 On March 29, 1973 she worked
for Leinoff Associates during the day and for Gimbel at night. The next morning, March 30, 1973, she suffered a pulmonary embolism and was not able to return to work until September 4, 1973.
Claimant applied to the State Plan for disability benefits under the Temporary Disability Benefits Law (the act), N.J.S.A. 43:21-25 et seq. , with respect to her employment with Leinoff Associates, and received $81 in weekly benefits from March 30, 1973 to May 17, 1973, a total of $567. At the same time she applied to Gimbel for the payment of benefits under the Store Plan and received $34 a week in benefits from March 30, 1973 to September 3, 1973.
Meanwhile, on May 22, 1973 the Division of Unemployment and Temporary Disability Insurance of the Department of Labor and Industry (the Division) notified claimant that she was not entitled to any benefits from the State Plan, since her period of disability had commenced while she was covered under a private plan. It stated that "[we] shall refer your claim to your employer's insurance carrier for refund of benefits erroneously paid by the State Plan."
Claimant filed an appeal with the Division respecting the $34 a week disability benefits paid her by Gimbel through the Store Plan. A hearing was held before a Private Plan hearing officer for the Division's Board of Review. He determined that she was in concurrent employment during some part of the day preceding the commencement of her disability and that "[as] one of the two employers had a Private Plan, she is eligible for benefits under that plan at $81.00 a week, the amount she would receive if covered only under the State Plan." He held that Store Plan was required to pay her $81 a week for disability benefits from March 30 to September
3, 1973 and in effect directed Store Plan to reimburse the State Plan for the $567 paid her by the latter plan. Store Plan appeals.
The Board relied on N.J.A.C. 12:18-2.10(c) in determining that Store Plan alone was required to pay claimant benefits equivalent to those to which she would have been entitled had all her employment been covered under the State Plan.
N.J.A.C. 12:18-2.10(c) provides:
If an employee is in concurrent employment with two or more employers of whom only one has a private plan, under which such employee is covered, then the employee shall be eligible to receive, under such private plan, benefits not less than he would be eligible to receive if covered only under the State plan with respect to all employment, and no benefits shall be payable under the State plan for disability commencing while he is covered under such private plan.
Store Plan appears to make no claim that the regulation here involved is not authorized by statute. However, the State has addressed itself to this issue. We do likewise, since it is essential to a determination of the constitutional challenge raised by Store Plan.
We have concluded that there is such authority, both in the general power given to the Division to enact rules and regulations to administer statutes subject to its control, N.J.S.A. 43:21-11, and in the provisions of N.J.S.A. 43:21-33 and N.J.S.A. 43:21-37.
N.J.S.A. 43:21-33 provides that a covered individual "shall not be entitled to any benefits from the State disability benefits fund with respect to any period of disability commencing while he is covered under an approved private plan." N.J.S.A. 43:21-37 grants disability benefits under the State Plan to any "covered individual who on the date of the commencement of a period of disability is not entitled to disability benefits under an approved private plan * * *." It is thus evident that the Legislature intended that an employee covered by a private plan while disabled
should not be permitted to obtain benefits from ...