SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0194-18T4

ANDREA CARTWRIGHT, 

Appellant, 

v. 

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and SKC & CO. CPAS, LLC,

Respondents. 

___________________________

Submitted November 4, 2019 – Decided

Before Judges Ostrer and Vernoia. 

On appeal from the Board of Review, Department of 

Labor, Docket No. 142,654.

Andrea Cartwright, appellant pro se. 

Gurbir S. Grewal, Attorney General, attorney for 

respondent Board of Review (Donna Arons, Assistant 

Attorney General, of counsel; Dipti Vaid Dedhia, 

Deputy Attorney General, on the brief).

Respondent SKC & Co. CPAs, LLC has not filed a 

brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

November 21, 2019
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PER CURIAM

Claimant Andrea Cartwright appeals from a Board of Review final 

decision finding her ineligible for disability benefits during unemployment 

under N.J.S.A. 43:21-4(f)(1) from February 15, 2015 through March 28, 2015, 

because she earned wages and otherwise certified she was able and willing to 

work during that period. There is substantial credible evidence supporting the 

Board's findings and claimant otherwise fails to demonstrate the Board's 

decision is arbitrary, capricious, or unreasonable. We therefore affirm.

Following the termination of her employment with SKC & Co. CPAs, 

LLC in November 2014, claimant applied for and received unemployment 

compensation benefits, which she collected until June 2015. On January 28, 

2015, claimant delivered a child by cesarean section. Claimant did not apply 

for disability benefits until July 6, 2015. A Division of Temporary Disability 

Insurance deputy determined claimant was ineligible for temporary disability 

benefits because she filed her application late without good cause. Following 

claimant's appeal, the Appeal Tribunal affirmed the deputy's determination. The 

Board subsequently affirmed the Appeal Tribunal's decision.

Claimant appealed. In a sua sponte order, we reversed the Board's 

decision, finding that although claimant did not file her claim within "[thirty] 
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days after the commencement of the period of disability" as prescribed in 

N.J.S.A. 43:21-49(a)(2), the time period could be tolled or extended based on 

equitable considerations. Cartwright v. Bd. of Review, No. A-3883-15 (App. 

Div. Aug. 10, 2017) (order at 3). We determined the Board's finding claimant 

did not establish a basis allowing the late filing of her application for disability 

benefits "was unreasonable and lacked fair support in the record." Id. at 7. More 

specifically, we determined the Board did not consider the totality of the 

circumstances, including claimant's testimony she was unaware she was eligible 

for disability benefits, her employer's failure to provide information about her 

eligibility despite its knowledge she was in the third trimester of her pregnancy 

when her employment terminated, and the lack of evidence that her employer 

posted the required notices advising its employees of their eligibility for 

disability benefits. Ibid. We also found the employer's "failure to provide 

claimant with the needed information . . . clearly [led] to the confusion that 

caused [her] to file her . . . application late," id. at 4, and remanded for the Board 

to determine "the amount of benefits claimant should receive," id. at 7. 

On remand, a deputy determined claimant was eligible for disability

benefits during unemployment from December 28, 2014, to February 14, 2015, 

but was ineligible from February 15, 2015, to March 28, 2015, because she 
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reported earning income commencing on February 15, 2015. The deputy 

explained that disability benefits during unemployment are paid only during 

periods that an individual is "unable to perform any type of work," and since 

claimant was able to work, and worked, following February 15, 2015, she was 

not disabled following that date. 

Claimant appealed the deputy's decision. During the hearing before the 

Appeal Tribunal, claimant testified that from February 15, 2015, through March 

28, 2015, she started a business filing client tax returns because she had been 

told by her employer that she was required to look for work while collecting 

unemployment benefits. She admitted earning income from her work and 

certifying to the Division she was able and available to work during that period. 

She explained that she did so because she was unaware she could have claimed 

she was disabled. 

A Department of Labor examiner testified claimant was not entitled to 

disability benefits during unemployment from February 15, 2015, through 

March 28, 2015, because she "was working or receiving wages" and therefore 

"did not meet the requirement that she be completely disabled from any work or 

remuneration during that time period." The examiner explained that to qualify 

for disability benefits during unemployment, a claimant must be "totally unable 
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to perform any work." In his closing statement, the examiner asserted that "[t]he 

fact that [claimant] performed the work . . . demonstrates she was not totally 

disabled," regardless of her intention or what she had been told about the 

benefits. 

The Appeal Tribunal affirmed the deputy's determination claimant was 

ineligible for the benefits from February 15, 2015, through March 28, 2015. The 

Appeal Tribunal observed N.J.S.A. 43:21-4(f)(1) provides that unemployed 

individuals shall be eligible to receive disability benefits during unemployment 

with respect to any week only if it appears "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." The Appeal Tribunal rejected claimant's testimony she could 

not work during the period at issue because she "entered earnings during the 

weeks in question when she indicated that she was able and available for work." 

The Appeal Tribunal found that "to be eligible for disability benefits during 

unemployment a claimant must be totally unable to perform any work" and, here, 

claimant did not show she was unable to work between February 15, 2015, and 

March 28, 2015. The Appeal Tribunal concluded claimant was ineligible for 
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disability benefits during unemployment under N.J.S.A. 43:21-4(f)(1) between 

February 15, 2015 and March 28, 2015. 

The Board affirmed the Appeal Tribunal's determination. This appeal 

followed.

Our scope of review of an agency decision is limited. In re Stallworth, 

208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 

(1980)). In challenging an agency conclusion, the claimant carries a substantial 

burden of persuasion, and the determination of the administrative agency carries 

a presumption of correctness. Gloucester Cty. Welfare Bd. v. N.J. Civ. Serv. 

Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to 

the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. 

v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

We are also "obliged to defer to the Board when its factual findings are 

based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. 

of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations 

omitted). Indeed, "[w]e are not permitted to review the case as though we were 

the original factfinder and substitute our judgment for any disagreements we 

might have with the Board." Ibid. "Rather, we must determine whether the 

Board could reasonably have reached its conclusion based on the proofs." Ibid.
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We overturn an agency determination only if it is arbitrary, capricious, 

unreasonable, unsupported by substantial credible evidence as a whole, or 

inconsistent with the enabling statute or legislative policy. Barry v. Arrow 

Pontiac, Inc., 100 N.J. 57, 71 (1985). 

Although acknowledging she performed work and earned income from 

February 15, 2015 through March 28, 2015, and certified to the Division she 

was able and willing to work during those weeks, claimant asserts the Board 

erred by determining she was ineligible for disability benefits during 

unemployment for that period. She argues that despite her employment, income, 

and representations, she was actually disabled and would not have worked, 

earned income, or made the representations if she was aware she could have 

claimed a disability as a result of the delivery of her child. We are not 

persuaded.

We first note that claimant is not eligible for benefits under the Temporary 

Disability Benefits Law, N.J.S.A. 43:21-25 to 43:21-71, which is "designed to 

protect persons in employment against wage loss due to nonoccupational 

sickness or accident" by providing payment of benefits. N.J. Bell Tel. Co. v. 

Bd. of Review, 78 N.J. Super. 144, 146 (App. Div. 1963). Under N.J.S.A 43:21-

29(a), the disability of a covered individual "shall be compensable" if "the 
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disability is the result of the covered individual suffering an accident or sickness 

not arising out of and in the course of the individual's employment ... and 

resulting in the individual's total inability to perform the duties of employment." 

A "covered individual" is "any person who is in employment ... or who has been 

out of such employment for less than two weeks." N.J.S.A. 43:21-27(b)(1). 

As the Appeal Tribunal correctly noted, claimant's employment ended on 

November 10, 2014, and she gave birth on January 28, 2015. She qualified for 

benefits as a covered individual under the Temporary Disability Benefits Law 

only until November 24, 2014, two weeks following the termination of her 

employment. Ibid. It was determined, and it is not disputed, that claimant's 

pregnancy related disability began on December 28, 2014.

1

 The Appeal 

Tribunal found claimant is not a "covered individual" entitled to benefits under 

the Temporary Disability Benefits Law because she was not "out of . . . 

employment for less than two weeks" when her disability began. Ibid. Rather, 

her disability began more than six weeks after her employment ended. Benefits 

1

 We rely on claimant's and the Board's agreement in their respective briefs that 

claimant's pregnancy related disability began on December 28, 2014. We note 

that the record on appeal does not include a decision, determination, or order to 

that effect. 
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may not be awarded "for any period of disability which did not commence while 

the claimant was a covered individual." N.J.S.A. 43:21-39(c). 

The Board adopted the Appeal Tribunal's factual findings regarding the 

dates of claimant's employment, termination of employment, and period of 

disability. We defer to those findings because they are supported by sufficient 

credible evidence. Lourdes Med. Ctr., 197 N.J. at 367. Claimant does not argue 

otherwise. 

As the Board correctly determined, claimant's eligibility for disability 

benefits during unemployment is governed by the Unemployment Compensation 

Law, N.J.S.A. 43:21-1 to 43:21-24.4, which provides benefits "for the worker 

earning nothing, because he [or she] is out of work through no fault or act of his 

[or her] own, until he [or she] can find employment." Yardville Supply Co. v. 

Bd. of Review, 114 N.J. 371, 375 (1989) (quoting Schock v. Bd. of Review, 89 

N.J. Super. 118, 125 (App. Div. 1965)). The law provides for the award of 

disability benefits during unemployment, but under defined and limited 

circumstances. See generally N.J.S.A. 43:21-4.

N.J.S.A. 43:21-4(f)(1) authorizes disability benefits during 

unemployment to individuals suffering "any accident or sickness not 

compensable under the workers' compensation law ... and resulting in the 
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individual's total disability to perform any work for remuneration." The burden 

rests upon the claimant to establish his or her right to unemployment 

compensation benefits. Patrick v. Bd. of Review, 171 N.J. Super. 424, 426 

(App. Div. 1979).

The Division qualified claimant for disability benefits during 

unemployment under N.J.S.A. 43:21-4(f)(1) from December 28, 2014, when her 

disability began, until February 14, 2015.2 The Board determined claimant was 

disqualified from the benefits from February 15, 2015, through March 28, 2015, 

because during that period claimant worked, earned income, and certified she 

was not disabled, but instead was able and willing to work. The Board 

concluded claimant did not suffer from a "total disability to perform any work 

for remuneration" after February 15, 2015, and disqualified her from receiving 

disability benefits during unemployment after that date. The Board's factual 

findings are supported by substantial credible evidence; claimant testified to 

those facts during the hearing. Thus, we discern no basis to reverse either the 

2

 In their respective briefs on appeal the parties agree that claimant was deemed 

eligible for disability benefits during unemployment under N.J.S.A. 43:21-

4(f)(1) from December 28, 2014, through February 14, 2015. The record on 

appeal, however, does not include a decision or order to that effect.
11 A-0194-18T4

Board's factual findings or its conclusion that during the period at issue 

defendant did not satisfy N.J.S.A. 43:21-4(f)(1)'s requirements. 

Claimant's contention she would not have worked during the period if she 

knew she was otherwise qualified for benefits based on her pregnancy ignores 

that she certified to the Division she was able and willing to work during the 

period at issue and, as a matter of undisputed fact, she worked and earned 

income during that time. Claimant does not allege that either her employer or 

the Division advised her to misrepresent her ability and availability to work, and 

the Board properly accepted the representations in her certifications. In 

addition, acceptance of claimant's argument would require a finding that lacks 

support in the record: that she either misrepresented her ability and availability 

to work in her weekly certifications to the Division or that she otherwise would 

have misrepresented her ability and availability to work in her certifications. 

The law allowed claimant disability benefits during unemployment related 

to her pregnancy and the delivery of her child, but did not mandate the benefits 

when she otherwise did not satisfy the statutory requirements. N.J.S.A. 43:21-

4(f)(1) sets forth the requirements for the receipt of the benefits and, based on 

claimant's actions and admissions, she did not qualify for the benefits because 

she was not totally disabled as a matter of fact from February 15, 2015, through 
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March 28, 2015. The Board correctly determined she was not entitled to 

disability benefits during unemployment under the Unemployment 

Compensation Law, N.J.S.A. 43:21-4(f)(1), during that time. 

We reject claimant's contention that in our prior decision reversing the 

Board's determination that her application for the benefits was untimely, we 

found her "eligible for disability benefits for the time period in question as she 

relied on incorrect information provided by" her employer. Our prior decision 

was limited to a determination that the Board erred by finding she filed the 

application late. We did not address claimant's eligibility for disability benefits 

during unemployment, but instead remanded for the Board to make that 

determination in the first instance. 

Affirmed.