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Bessie Kohn v. Board of Review

February 14, 2012

BESSIE KOHN, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND HARROGATE INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 268,145.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2012

Before Judges Ashrafi and Newman.

Claimant Bessie Kohn appeals from the determination of the respondent Board of Review (the Board), denying her claim for unemployment benefits that was filed more than five years after she stopped working because of a disability and more than seven months after her orthopedist permitted her to return to work. We affirm.

Claimant needed a tendon transfer in her foot and had the surgery performed in September 2004. She was terminated from her employment at Harrogate where she had worked as an activities assistant at a nursing home. During her recovery, she filed and was approved for disability benefits through Social Security and private insurance. She was informed by her employer that the job would be kept open for a period of time prescribed by law. She was discharged, although there appears to be a disagreement over whether the time was in compliance with the law. The disagreement, however, is not relevant to the claim made here.

Not until May 26, 2009, was claimant cleared to return to employment. She searched for employment on her own but was unsuccessful. In December, she sought to secure unemployment compensation and was denied on January 3, 2010.

Following a telephonic hearing, the appeal tribunal determined that her claim was invalid because she did not have sufficient base weeks of wages for the five quarters prior to seeking unemployment benefits. The Board affirmed the appeal tribunal's decision, but predicated its denial of unemployment compensation benefits on an alternate basis. The Board based its decision on claimant's failure to file for unemployment benefits more than four weeks after she was deemed fit to return to work and without good cause pursuant to N.J.A.C. 12:17-5.6(a)1.

On appeal, claimant argues that she should be eligible for unemployment benefits because the Board's decision was not correct. She contends that she was never provided with any notice by the State, her former employer or her private disability insurer of any time frame within which to apply for unemployment benefits. She asserts that she should not be penalized when she searched for employment after she was cleared to work and that should suffice to constitute good cause. We disagree.

N.J.S.A. 43:21-19(c)(1) defines a base year for eligibility for unemployment benefits as: the first four of the last five completed calendar quarters immediately preceding an individual's benefit year.

N.J.S.A. 43:21-19(d) defines "benefit year" as: the 364 calendar days beginning with the day on, or as of, which [a claimant] first files a valid claim for benefits . . . .

The minimum wage determination in factoring claimant's benefit year, 2010, under N.J.S.A. 43:21-4(4)(B) was $7,200.

Claimant did not establish twenty base weeks of employment within the regular base year. N.J.S.A. 43:21-4(e)(4)(A); N.J.S.A. 43:21-19(t)(3); N.J.S.A. 43:21-19(c)(1). Further, she did not earn "remuneration not less than the amount one thousand times the minimum wage in effect . . . " during the base year of $7,200. N.J.S.A. 43:21-4(e)(4)(B); N.J.A.C. 12:15-1.6. Since she was disabled in September 2004, she had no base year earnings from employment before rejection of her claim for unemployment benefits on January 3, 2010. Consequently, she was ineligible for filing during the regular base year.

Claimant did receive temporary disability benefits. With respect to that, the legislature in 1991 ameliorated the definition of the base year and amended N.J.S.A. 43:21-19(c) to provide an alternative "base year" for those individuals who find their jobs no longer available after a period of disability during which they qualified either for temporary disability or worker's compensation ...


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