                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3252-15T4

MAURICE MITCHELL,

        Appellant,

v.

BOARD OF REVIEW, NEW JERSEY
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT and
EXCELSIOR MEDICAL,

     Respondents.
____________________________

              Submitted May 8, 2017 – Decided May 22, 2017

              Before Judges Haas and Geiger.

              On appeal from the New Jersey Department of
              Labor and Workforce Development, Docket No.
              070,221.

              Maurice Mitchell, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Christopher Weber, Deputy
              Attorney General, on the brief).

              Respondent Excelsior Medical has not filed a
              brief.

PER CURIAM
      Appellant    Maurice     Mitchell    appeals     from   a   final    agency

decision of the Board of Review dated March 18, 2016.                   The Board

of    Review    affirmed       the   Appeal      Tribunal's       determination

disqualifying appellant from additional benefits during training

(ABT) under N.J.S.A. 43:21-60(b).          We affirm.

      Between July 2004 and December 23, 2014, appellant worked as

a loader for Excelsior Medical Corporation.            On December 23, 2014,

appellant was discharged from employment due to severe misconduct

connected with the work for being "under the influence of alcohol

while on the job."       He filed a claim for unemployment benefits as

of December 28, 2014.        Following a separate administrative appeal

related to his claim, appellant's discharge was modified to simple

misconduct on April 17, 2015.        Appellant's disqualification period

ran from December 28, 2014, through February 21, 2015.

      On September 2, 2015, appellant was deemed eligible for the

Unemployed     Persons   Job   Training    Program,     under     the   Workforce

Development Partnership Program, N.J.A.C. 12:23.                As a result, he

enrolled in four university courses, incurred commuting expenses,

and borrowed money from relatives to purchase books for the

courses.   Then, on September 28, 2015, the Department of Labor and

Workforce Development (the Department) determined that appellant

was   ineligible   for    ABT,   because    he   was   "not     separated     from

employment due to a substantial reduction in work opportunities

                                      2                                   A-3252-15T4
in   [his]    job   classification    at   [his]        former   worksite."      He

administratively appealed that determination.

      Following a December 10, 2015 hearing, the Appeal Tribunal

affirmed the decision that appellant was ineligible for ABT because

he was terminated for misconduct, which disqualified him for

benefits at the time of his separation from work and the filing

of his claim.       Appellant further appealed and the Board of Review

affirmed on the basis of the record below.                This appeal followed.

      Appellant now raises the same arguments that he raised before

the agency: (1) he was eligible for ABT under N.J.S.A. 43:21-

16(b);     (2)   N.J.S.A.   43:21-16(b)       is    ambiguous    and   should    be

interpreted liberally in favor of benefits; (3) the Department

should be equitably estopped from denying benefits; and (4) the

denial of benefits was arbitrary and capricious, and violated his

due process rights.

      We     exercise   limited      review        of   administrative     agency

decisions.       Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).               We

simply determine whether the administrative decision is arbitrary,

capricious, or unreasonable.          Henry v. Rahway State Prison, 81

N.J. 571, 579-80 (1980). The burden of proof rests with the person

challenging the action.       In re Arenas, 385 N.J. Super. 440, 443-

44 (App. Div.), certif. denied, 188 N.J. 219 (2006). An individual

seeking unemployment benefits, including ABT, bears the burden of

                                       3                                  A-3252-15T4
proving that he or she is entitled to receive them.     Brady, supra,

152 N.J. at 218; Bonilla v. Bd. of Review, 337 N.J. Super. 612,

615 (App. Div. 2001).

     In   matters   involving    unemployment   benefits,   we    accord

deference to the expertise of the Board of Review.          See Brady,

supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super.

241, 245 (App. Div. 1985).      We must accept the Board of Review's

findings if they are supported by sufficient credible evidence.

Brady, supra, 152 N.J. at 210.

     Unemployment compensation exists "to provide some income for

the worker earning nothing because he is out of work through no

fault or act of his own."       Futterman v. Bd. of Review, 421 N.J.

Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady,

supra, 152 N.J. at 212).

     In 1992, the Legislature enacted N.J.S.A. 43:21-60(a), which

provides, in pertinent part, that additional benefits shall be

provided to any individual who:

          a.   Has received a notice of a permanent
          termination of employment by the individual's
          employer or has been laid off and is unlikely
          to return to his previous employment because
          work opportunities in the individual's job
          classification are impaired by a substantial
          reduction of employment at the worksite[.]




                                   4                             A-3252-15T4
     In Bonilla, supra, the court analyzed the purpose of and

eligibility for ABT:

            [N.J.S.A. 43:21-60(a)] is economically driven
            legislation that has the obvious purpose of
            enabling individuals who are economically
            displaced from their employment to be paid
            benefits while acquiring new skills to reenter
            a more marketable area of the economy. It is
            thus clear that to obtain additional benefits
            during training, the claimant must be fired
            or laid off and be unlikely to return to that
            job because of a "substantial reduction of
            employment at the worksite."

                 Likewise, the implementing regulation,
            N.J.A.C. 12:23-5.1, provides, in pertinent
            part , that

            (a) An individual will be eligible for
            additional   unemployment   benefits during
            training only if the individual:

            * * *

            2.   Is permanently separated from employment
            and is unlikely to return to such employment
            due to a substantial reduction in work
            opportunities   in   the   individual's   job
            classification at his or her former worksite;

            [Bonilla, supra, 337 N.J. Super. at 615-16.]

     Appellant      does   not   meet       this   eligibility    requirement.

Appellant was terminated for misconduct.            He was not "economically

displaced" by being fired or laid off due to a "substantial

reduction of employment at the worksite," that made him unlikely

to return to his former employment.           See ibid.      There was no other

reduction   in   employment      at   the    worksite   in    appellant's    job

                                        5                               A-3252-15T4
classification at the time he was discharged. Therefore, appellant

was appropriately found ineligible for additional benefits.           See

id. at 616-17.

       In addition, in order to be eligible to receive ABT, the

claimant must also be eligible for unemployment benefits "at the

time of layoff or termination[.]" N.J.S.A. 43:21-60(b). Appellant

filed for benefits on December 28, 2014.       It is undisputed that

appellant was temporarily disqualified for unemployment benefits

from December 28, 2014, through February 21, 2015.          Because of

this   initial   period   of   disqualification,    appellant   was   not

eligible for unemployment benefits at the time of his termination,

and, therefore, he was ineligible for ABT.         Ibid.

       Appellant also argues that N.J.S.A. 43:23-60(b) is ambiguous.

We disagree.     The clear and unambiguous language of the statute

provides that in order to be eligible for ABT, the claimant must

be eligible for unemployment benefits "at the time of layoff or

termination[.]"     N.J.S.A. 43:21-60(b).    Appellant did not meet

this requirement.

       Appellant's reliance on Alexander v. Bd. of Review, 405 N.J.

Super. 408 (App. Div. 2009), is misplaced.     Alexander interpreted

only N.J.S.A. 43:21-60(a), not N.J.S.A. 43:21-60(b).        Id. at 417-

18.    In any event, appellant is still ineligible to receive ABT

under subsection (a).

                                    6                            A-3252-15T4
     Appellant   further      contends   that   the   agency   should      be

equitably   estopped   from    denying   ABT    benefits.      Appellant's

equitable estoppel argument is not persuasive.           The doctrine of

equitable estoppel is rarely invoked against a governmental entity

except in instances to prevent a manifest injustice.           Aqua Beach

Condo. Ass'n v. Dep't of Cmty Affairs, 186 N.J. 5, 20 (2006);

Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999). While

equitable estoppel has been applied to prevent recoupment of

unemployment   compensation     benefits   that   were   properly     paid,

Hopkins v. Bd. of Review, 249 N.J. Super. 84, 89 (App. Div. 1991),

it should not be applied here where the claimant was properly

determined to be ineligible for ABT.

     The remaining point raised by appellant lacks sufficient

merit to warrant discussion in a written opinion.                R. 2:11-

3(e)(1)(D) and (E).

     The decision of the Board of Review was not arbitrary,

capricious, or unreasonable, and is amply supported by substantial

credible evidence in the record.

     Affirmed.




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