On appeal from the Board of Review, Department of Labor.
Before Judges Dreier, *fn1 Keefe and Wecker.
The opinion of the court was delivered by: Keefe, J.A.D.
Plaintiff, Gregory Bodnarchuk, appeals from a final determination of the Board of Review denying him unemployment compensation benefits stemming from a claim filed by him on January 21, 1996. The issue presented on appeal is whether plaintiff qualified for an alternate "base year" calculation pursuant to the provisions of N.J.S.A. 43:21-19(c)(3). We disagree with the Board's interpretation of the statute and remand for further proceedings.
The following facts appear undisputed in the record before us. On January 15, 1994, plaintiff was employed by Metro Service Company when he was caused to leave his employment on that date because of a back injury incurred one year earlier. He came under the care of Dr. Barolat, a Philadelphia physician approved by his employer. Dr. Barolat performed surgery on plaintiff after which plaintiff received physical therapy.
In December 1995, plaintiff attempted to return to work. He was informed by his employer that he could not return until he received a physician's certificate releasing him for work. Plaintiff immediately scheduled an appointment with Dr. Barolat for an unspecified date in December 1995 for that purpose. However, according to plaintiff, and verified by a letter from Dr. Barolat's office, his appointment was canceled due to bad weather conditions. An appointment scheduled for "early January" 1996 was also canceled for the same reason. Dr. Barolat was unable to see plaintiff until January 24, 1996, at which time he released plaintiff to return to work.
Upon presenting Dr. Barolat's certificate to his employer on the following day, plaintiff was advised that there was no position available for him. On January 25, 1996, plaintiff filed a claim for unemployment compensation benefits. A Division Deputy denied his claim, and plaintiff appealed to the Appeals Tribunal.
On March 14, 1996, a hearing was conducted before the Appeals Tribunal. Plaintiff was represented by counsel. At issue was the interpretation of the following statute.
With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the workers' compensation law . . . , "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the period of disability was not longer than two years, if the employment held by the individual immediately preceding the period of disability is no longer available at the Conclusion of that period and if the individual files a valid claim for unemployment benefits after the Conclusion of that period. For the purposes of this paragraph, "period of disability" 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. . . .
[N.J.S.A. 43:21-19(c)(3) (emphasis added).]
The specific issue before the Appeals Tribunal was whether plaintiff's "period of disability" was "longer than two years." Plaintiff contended at the hearing that the statute should be "liberally construed" and contended that but for the weather conditions Dr. Barolat would have issued the back-to-work order in December 1995, well before the January 15, 1996, anniversary date. The Appeals Examiner conceded that the issue presented was a novel one.
On March 19, 1996, the Appeals Examiner issued his opinion denying plaintiff's claim. The crux of his decision is found in the following passage from the opinion.
The claimant contends that his original doctor's appointment was scheduled for 12/95 but was rescheduled twice because of inclement weather. As a result, the claimant's claim for Unemployment Insurance Benefits was filed late after the statutory two year period. While this Tribunal can emphasize (sic) *fn2 with the claimant's predicament, there is no precedent decision which would allow the validation of a claim which was filed after the two year statutory limit. Therefore, the Unemployment Insurance Claim dated 1/21/96 is invalid in accordance with N.J.S.A. 43:21-19(c)(3) as it was filed late.
On appeal to the Board of Review, the decision of the Appeals Examiner was affirmed for the reasons ...