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Gilliland v. Board of Review

March 5, 1997

THOMAS GILLILAND, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY AND RUTGERS, THE STATE UNIVERSITY, RESPONDENTS-RESPONDENTS.



On appeal from the Board of Review, Department of Labor.

Approved for Publication March 10, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J.S.C. (temporarily assigned).

Petitioner Thomas Gilliland appeals from a final determination of the Board of Review denying him the benefit of the alternate base year provision of N.J.S.A. 43:21-19(c)(2) and thereby limiting his unemployment benefits to the lesser amount calculated upon the base year provided by N.J.S.A. 43:21-19(c)(1).

Petitioner was employed as a heating, ventilation and air-conditioning technician at Rutgers University from 1980 until he injured his back in January 1994. *fn1 It appears that petitioner received workers' compensation benefits for one month and vacation and sick pay until May 25, 1994, when he began to receive disability benefits. His eligibility for disability benefits ended November 25, 1994, when his doctor pronounced him able to return to work, but imposed a 30-pound limit on the weight he could lift. Apparently petitioner's supervisors at Rutgers could not use him in his previous position with the limitation on his weight-lifting ability and equivocated from the end of November until the beginning of March about either finding him alternate work or terminating him. Petitioner's testimony about his communications with Rutgers personnel was somewhat vague; however, he and his wife both testified at the hearing and narrowed the date of his last meeting with a Rutgers supervisor to the first week in March 1995.

For purposes of the unemployment compensation law, N.J.S.A. 43:21-1 et seq., and the calculation of benefits thereunder, N.J.S.A. 43:21-19(c) (the statute) defines the "base year." Under section (1) of the statute, the base year ordinarily means "the first four of the last five completed calendar quarters immediately preceding an individual's benefit year." *fn2 In 1991 the Legislature recognized an inequity under that definition of the base year and amended the statute to provide an alternate definition of "base year" for individuals who find their jobs no longer available after a period of disability during which they qualified either for disability or workers' compensation benefits. The Assembly Statement accompanying the amending legislation included the following:

At present, the base year for determining unemployment compensation benefit eligibility is the first four of the last five full calendar quarters immediately prior to the application for the benefits. Consequently, an individual who is unable to obtain work after being disabled for a large part of the base year is often prevented from obtaining unemployment benefits, no matter how long the individual was employed before the disability. This substitute would remedy that situation by insuring that, with respect to unemployment compensation benefits, a worker unable to find work is not penalized for a previous disability.

[Assembly Labor Comm. Statement to Assy. No. 2893, L. 1991, c. 486.]

Section (2) of the amended statute applies to individuals such as the petitioner who qualified for disability benefits and found his job unavailable when he was able to return to work. *fn3 Section (2) defines the base year as:

the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the employment held by the individual immediately preceding the period of disability is no longer available at the Conclusion of that period and the individual files a valid claim for unemployment benefits after the Conclusion of that period.

There is no dispute that using the alternate base year would result in petitioner's entitlement to a higher weekly benefit amount and a higher total maximum benefit. The Appeal Tribunal's factual findings adopted petitioner's testimony, including, inter alia :

After his release [by his doctor], the petitioner contacted officials at the university to ascertain when he could return to work. He has still, to date, not obtained confirmation that he will, in fact, be allowed to return to work. In fact, during the first week in March 1995, the petitioner was told, by his former ...


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