On appeal from the Final Decision of the Board of Review.
Approved for Publication January 5, 1996.
Before Judges Pressler, Keefe and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion of the court was delivered by KEEFE, J.A.D.
Petitioner Joseph R. DiPasquale appeals from a final determination of the Board of Review (Board) denying him the alternate benefit year calculation afforded by N.J.S.A. 43:21-19 (c)(3). On appeal, petitioner contends that the Board improperly interpreted the statute in the context of the uncontroverted facts presented. We agree with petitioner and reverse the judgment under review for the reason stated herein.
Petitioner was employed as an automobile mechanic by Burns Honda on May 10, 1992 when he was injured in the course of his employment. Unable to work because of the injury, petitioner began receiving temporary disability benefits through the workers' compensation insurer. While still under treatment for the accident, but apparently able to return to work, petitioner left Burns Honda and became employed as a mechanic for Sussman Lincoln-Mercury (Sussman). While employed at Sussman, petitioner continued receiving physical therapy for the prior injury he had suffered at Burns. The therapy was apparently ineffective, and petitioner was forced to stop working in order to have surgery on his arm. He last worked for Sussman on March 7, 1993, and, thereafter, had three surgeries performed on his arm.
While out of work for the surgery and recuperation, petitioner received temporary disability benefits from the workers' compensation insurer totalling 54 and four sevenths weeks at $320.11 per week. Those benefits ended on or about March 18, 1994 when petitioner was informed by his physician that treatment would be of no further benefit to him, and that he could return to work although permanently disabled. The workers' compensation insurer then began making partial permanent compensation payments to petitioner in the amount of $11,203.98 for the permanent disability attributable to his right arm injury. The payment was to be made over a period of 90.75 weeks in monthly installments amounting to approximately $109.04 dollars per week.
Although petitioner was cleared to return to work, his physician advised him not to lift anything in excess of fifteen pounds. Petitioner advised Sussman of the restriction when he returned to work. Sussman then informed petitioner that it could no longer use him because of his physical limitation.
Petitioner filed for unemployment benefits effective May 1, 1994. The Deputy Director of the Division found him ineligible for unemployment compensation benefits. The Appeal Tribunal affirmed the deputy's determination. Specifically, the Appeals Examiner incorrectly concluded that petitioner was not entitled to the alternate year computation provided by N.J.S.A. 43:21-19 (c)(3) because "his period of disability [had] not yet concluded[.]"
Petitioner appealed to the Board. His attorney correctly pointed out to the Board that the phrase "period of disability" as defined in the statute "means the period from the time at which the individual becomes unable to work because of the compensable disability until the time that the individual becomes able to resume work and continue work on a permanent basis." Inasmuch as petitioner was released by his physician to resume work, albeit with some restriction because of his permanent disability, the Appeals Examiner was clearly incorrect in concluding that petitioner was ineligible because his period of disability had not yet concluded.
The Board affirmed the decision of the Appeal Tribunal in the following words:
On the basis of the record below, we agree with the decision reached. Additionally, the claimant's original worker-related injury occurred on May 10, 1992. The claimant was disabled from employer #1 [Burns] and then secured work with employer #2 [Sussman]. The provisions of N.J.S.A. 43:21-19(c)(3) do not apply in this case because the claimant's employment (with employer #2), which immediately preceded the period of disability which commenced on March 7, 1993, was available at the Conclusion of the disability and the claimant was unable to return to that job because he could no longer perform the work.
Although the Board used the word "additionally" in its decision, it would appear that the Board did not adopt the Appeals Examiner's interpretation that petitioner's "period of disability" had not yet ended. Rather, it appears that the Board concluded that petitioner's period of disability had ended when he attempted to return to work, but he was not entitled to the alternate base year calculation because the employment held by petitioner immediately preceding the period of disability was available at the Conclusion of that period.
In the words of the statute, petitioner would be entitled to the alternate base year calculation provided in N.J.S.A. 43:21-19 (c)(3) if "the employment held by [him] immediately preceding the period of disability is no longer available at the Conclusion of that period and if [he] files a valid claim for unemployment benefits after the Conclusion of that period." Ibid. The just quoted phrase, upon which the decision in this case hinges, was added to the statute by the Legislature in 1991. L. 1991, c. 486, § 1. The phrase has ...