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Steven P. Edelschein v. Board of Review

June 9, 2011

STEVEN P. EDELSCHEIN, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT.



On appeal from the Board of Review, Department of Labor, Docket No. 227,432.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 31, 2011

Before Judges Reisner and Sabatino.

Claimant Steven P. Edelschein appeals from an August 6, 2010 final decision of the Board of Review denying his claim for disability during unemployment benefits. We affirm.

I

Claimant lost his job in June 2008. According to his brief, he collected unemployment benefits from approximately June 2008, when he last worked, through "on or about the middle of March 2010," when his unemployment benefits "maxed out." In late March 2010, he had knee replacement surgery. He then applied for "temporary disability during unemployment" benefits on March 28, 2010.*fn1 See N.J.S.A. 43:21-4(f).

The claim was denied and he administratively appealed the denial. At a hearing on May 24, 2010, claimant admitted that he had not worked during the base year period of October 1, 2008 to September 30, 2009, and that he remained unemployed at the time of the hearing. In a written decision dated May 26, 2010, the appeals examiner upheld the denial. As the examiner explained, the unemployment compensation statute creates a series of alternative "thresholds" on which a claim for benefits can be based. See N.J.S.A. 43:21-4. However, all of those thresholds require that the applicant have worked during a base year, which is either measured by the number of weeks or hours worked, or the amount of income earned. See N.J.S.A. 43:21-19(c) (defining base year); N.J.S.A. 43:21-19(t)(2) (defining base week); N.J.A.C. 12:15-1.6 (defining the alternative earnings test).

Because claimant did not work at all, and had no earnings from employment during any of the possible time periods on which his claim could have been based, his claim was denied. In its August 6, 2010 decision, the Board of Review affirmed that determination.

II

The unemployment benefits law requires that a claimant be available to work in order to qualify for benefits. N.J.S.A. 43:21-4(c). However, the statute makes an exception for persons who become disabled and unable to work while they are receiving unemployment benefits. Ibid. This exception, set forth in N.J.S.A. 43:21-4(f), requires that, apart from the disability, the person must be otherwise eligible for unemployment benefits.

Subsection 4(f) defines an eligible disabled person as follows:

The individual has suffered any accident or sickness not compensable under the workers' compensation law, and resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits under this chapter (without regard to the maximum amount of benefits payable during any benefit year) except for the inability to work and has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S.43:21-3(d); provided, however, that benefits paid under this ...


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