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Grasso v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2007

ANTHONY J. GRASSO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR; S-M ELECTRIC COMPANY, INC.; ALLAN ELECTRIC COMPANY, INC.; NEWBERG-PERINI STONE & WEBSTER AND AMERICAN ELECTRICAL TESTING CO., INC., RESPONDENTS.

On appeal from the Final Decision of the Board of Review, Department of Labor, 105,470.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges Fuentes and Baxter.

Anthony J. Grasso appeals from the May 8, 2006 decision of the Board of Review (Board). The Board concluded that Grasso was not entitled to the alternate base year set forth in N.J.S.A. 43:21-19(c)(3) in the calculation of the amount due to him for a compensable disability under the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30.

On appeal, Grasso argues that his benefit year should be calculated based upon the time period of July 1, 2004 through June 30, 2005, rather than the October 1, 2004 to September 30, 2005 time period used by the Board. We disagree and affirm.

I.

On February 5, 2006, Grasso filed a claim for unemployment benefits as a result of a work-related injury to his shoulder. Four days later, the claim was approved and a weekly benefit rate of $521 was established, with an accompanying maximum benefit amount of $7294. Those findings, made by a deputy in the Division of Unemployment Insurance, were based on a conclusion that Grasso's base-year extended from October 1, 2004 through September 30, 2005, that Grasso had worked fourteen base weeks and had total base-year earnings of $33,755.

On March 2, 2006, Grasso appealed the deputy's determination to an appeal tribunal, arguing that he was unable to work from May 5 to October 14, 2005 due to the shoulder injury and maintained that if his "claim year is moved back a quarter because of the injury . . . [he] should be entitled to a full claim." After a hearing, the appeal tribunal dismissed Grasso's appeal as untimely, but the Board reversed that determination after concluding that Grasso had demonstrated good cause for filing a late appeal of the deputy's decision. The Board, in its May 8, 2006 decision, held that Grasso's claim was valid, that his weekly benefit amount was $521 and the Board increased his maximum benefit amount to $7,815; however, it affirmed the deputy's original determination that Grasso was ineligible for the alternate base year set forth in N.J.S.A. 43:21-19(c)(3).

The Board found that Grasso was disabled from June 24 through October 14, 2005, after which he returned to work through February 3, 2006, and was then laid off and filed his claim for unemployment benefits on February 5, 2006. The Board concluded that when Grasso filed his claim on February 5, 2006, his base year was established as October 1, 2004 through September 30, 2005, in light of N.J.S.A. 43:21-19(c)(1), which provides that base year "shall mean the first four of the last five completed calendar quarters immediately preceding an individual's benefit year." N.J.S.A. 43:21-19(c)(1).

In order for Grasso to have been eligible for the alternate base year that he sought, he was required to demonstrate that he was subject to a disability compensable under the Workers' Compensation Law "immediately preceding the benefit year." N.J.S.A. 43:21-19(c)(3). As the Board correctly determined, the record showed that Grasso "recovered and returned to work, albeit light duty, for five months subsequent to receiving worker's compensation" before he filed the claim for benefits on February 5, 2006. The Board therefore concluded that Grasso was not subject to a disability "immediately preceding the benefit year" of the claim, as required by the statute.

Moreover, we agree with the Board that even if Grasso had been entitled to take advantage of the alternate base year set forth in the statute, the applicable time frame would not be July 1, 2004 through June 30, 2005 as Grasso contends, but would instead encompass the period of January 1 to December 31, 2004. This is because the "period of disability" referred to in that statute is defined as "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). Grasso's disability lasted from June 24 to October 14, 2005. Thus, we agree with the Board that contrary to Grasso's calculation, if he were entitled to take advantage of the alternate base year set forth in that statute, his base year would extend from January 1 to December 31, 2004, which represents "the first four of the most recent five completed calendar quarters preceding the date his . . . disability began." N.J.A.C. 12:17-5.6(a).

Affirmed.

20070625

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