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James G. Mingo v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 15, 2011

JAMES G. MINGO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND GOLFSMITH NU, L.L.C., RESPONDENTS.

On appeal from the Board of Review, New Jersey Department of Labor, Docket No. 269,110.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 9, 2011

Before Judges Waugh and Koblitz.

Petitioner James G. Mingo appeals the decision of the Board of Review upholding a determination that he was not eligible for temporary disability benefits. We affirm.

Mingo applied for unemployment benefits on August 30, 2009. His claim was approved and he began receiving benefits. On November 2, 2009, he was involved in an automobile accident and became disabled and unable to work. Because he was unable to work, he became ineligible to receive further unemployment benefits. He was advised to apply for temporary disability benefits, but was denied because he did not have sufficient New Jersey employment to qualify.

Mingo appealed to the Appeal Tribunal, which held a telephonic hearing on March 25, 2010. The Tribunal subsequently upheld the denial of temporary disability benefits. Mingo appealed to the Board of Review, which affirmed the Appeal Tribunal on September 22, 2010. This appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Our review of the record on appeal leads us to conclude that the agency's decision in this case was not arbitrary, capricious, or unreasonable. Prior to his unemployment, Mingo was employed by a New Jersey employer and then a New York employer. Although wages earned from both were eligible for establishing the required base period for unemployment benefits, see N.J.S.A. 43:21-21(a), the wages earned in New York were not eligible for that purpose with respect to temporary disability benefits because the New York employer does not contribute to New Jersey's temporary disability fund. See N.J.S.A. 43:21-4(f)(3) and N.J.S.A. 43:21-25 to -31. In addition, the Appeal Tribunal's determination with respect to the use of a prior base period for unemployment benefits claimed earlier is supported by the record of the telephonic hearing.

Affirmed.

20110815

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