MARIA PARISE v. BOARD OF REVIEW et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5260-04T15260-04T1

MARIA PARISE,

Claimant-Appellant,

v.

BOARD OF REVIEW and

BUTLER BOARD OF EDUCATION,

Respondents-Respondents.

________________________________________________________________

 

Argued October 25, 2006 - Decided November 14, 2006

Before Judges Parker and Yannotti.

On appeal from the Board of Review, Department

of Labor, 69,910.

Maria Parise argued the cause pro se.

John C. Turi, Deputy Attorney General, argued

the cause on behalf of respondent, Board

of Review (Stuart Rabner, Attorney General of

New Jersey, attorney; Michael J. Haas, Assistant

Attorney General, of counsel; Mr. Turi, on the

brief).

PER CURIAM

Claimant Maria Parise appeals from a decision by the Board of Review (Board) reducing her unemployment benefits by fifty percent because she received disability pension benefits while she was being paid unemployment benefits. The Board further required claimant to refund the excess benefits paid to her.

At the hearing before the Appeal Tribunal, claimant testified that she applied for a disability pension in July 2004, effective on August 1, 2004. She did not receive a pension check, however, until January 2005. In February 2005, she received a lump sum payment for the period from August 1 to December 31, 2004. She had collected twenty-six weeks of unemployment benefits from April 25 through October 23, 2004, overlapping the period of pension benefits.

In this appeal, claimant argues that she should not be subject to the refund because, at the time she applied for unemployment benefits, she did not know whether she would be eligible for a pension since litigation over termination of her employment was still pending.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). We give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

N.J.S.A. 43:21-5a provides:

The amount of benefits payable to an individual for any week which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment which is based on the previous work of such individual shall be reduced, but not below zero, by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week; provided that such reduced weekly benefit rate shall be computed to the next lower multiple of $1.00 if not already a multiple thereof and that any such reduction in the weekly benefit rate shall reduce the maximum total benefits of the individual during the benefit year; provided further that, if the provisions of the federal Unemployment Tax Act permit, the Commissioner of Labor may prescribe in regulations which are consistent with the federal Unemployment Tax Act either or both of the following:

a. The requirements of this section shall only apply in the case of a pension, retirement or retired pay, annuity, or other similar periodic payment under a plan maintained or contributed to by a base period of chargeable employer as determined under the chapter to which this act is a supplement;

b. The amount of any such reduction shall be determined taking into account contributions made by the individual for the pension, retirement or retired pay, annuity or other similar periodic payment.

N.J.A.C. 12:17-8.4 provides that a person "who receives a retroactive pension payment shall be subject to benefit reduction as of the first calendar week commencing after the effective date of pension entitlement . . . for any week he or she also received unemployment benefits and shall be liable to refund any resulting overpayment of benefits." Ibid.

N.J.A.C. 12:17-8.4 and N.J.S.A. 43:21-5a are clear in that a claimant's unemployment benefits must be reduced when a pension benefit is collected simultaneously. Claimant must, therefore, refund the excess benefits paid to her unless the Board determines to waive the refund of benefits. The decision of the Board is affirmed. R. 2:11-3(e)(1)(D).

Affirmed.

 

At oral argument, claimant advised us that she is currently seeking to have the Board waive her obligation to refund the excess benefits because of her medical disability. That issue is not before us in this appeal, however.

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A-5260-04T1

November 14, 2006