KATHERINE E. THOMPSON v. BOARD OF REVIEW, KENNEDY MEMORIAL HOSPITAL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2342-06T22342-06T2

KATHERINE E. THOMPSON,

Appellant,

v.

BOARD OF REVIEW,

KENNEDY MEMORIAL HOSPITAL,

and MED STAFF, INC.,

Respondents.

________________________________________________________________

 

Submitted January 7, 2008 - Decided

Before Judges Gilroy and Baxter.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 110,740.

Katherine E. Thompson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent, Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondents, Kennedy Memorial Hospital and Med Staff, Inc., did not file a brief.

PER CURIAM

Katherine E. Thompson appeals from a December 4, 2006 decision of the Board of Review (Board), in which the Board concluded that Thompson was obligated to refund the sum of $6,199 she received as benefits for the weeks ending January 1, 2004 through May 29, 2004. The Board declined to consider Thompson's request for a waiver of her obligation to repay those benefits because she had failed to request a waiver from the Director of the Division of Unemployment and Temporary Disability Insurance (Director) of the Department of Labor. We affirm the Board's determination that Thompson was obligated to repay the amount in question. Our affirmance is without prejudice to Thompson's right to apply to the Director for waiver of her refund obligation.

I.

After voluntarily leaving employment as a part-time staff nurse at Kennedy Memorial Hospital, Thompson applied for unemployment compensation benefits. A deputy claims examiner denied the claim. After the Appeal Tribunal affirmed the denial of benefits on March 19, 2004, Thompson did not appeal any further, and the decision became final.

Through an apparent administrative error, the Division of Benefits nonetheless commenced sending benefit checks to Thompson in April 2004. After realizing the mistake, the Director issued a demand that Thompson refund those benefits. Thompson appealed the Director's demand for a refund to the Appeal Tribunal, which, after a hearing, determined on September 27, 2006, that in accordance with N.J.S.A. 43:21-16(d), Thompson was obligated to refund the $6,199 in benefits that she had improperly received.

Thompson thereafter appealed to the Board, which on December 4, 2006 rendered a final decision affirming the decision of the Appeal Tribunal, again finding that Thompson was obligated to repay those benefits. The Board noted that in Thompson's appeal to the Board, she had requested a waiver of her obligation to repay the benefits she received. The Board referred the waiver request to the Director, explaining that "appellate bodies [such as the Board] have no original jurisdiction" to consider waiver requests.

On appeal, Thompson does not dispute the Board's conclusion that she improperly received an overpayment of benefits in the amount of $6,199. Instead, she argues that because the payment of those benefits was due solely to an administrative error on the part of the Division, and was not the result of any non-disclosure or misrepresentation on her part, her obligation to repay those benefits should be waived.

II.

This court is not bound by an agency's determination of a purely legal issue. Ssi Med. Servs. v. State Dep't of Human Servs., 146 N.J. 614, 621 (1996). Nevertheless, we affirm the Board's December 4, 2006 determination that Thompson was obligated to repay the $6,199 of benefits that she received. Whenever an individual who has been paid unemployment compensation benefits is subsequently found not to have been entitled to those benefits, that individual must repay them in full to the Division. N.J.S.A. 43:21-16(d). N.J.S.A. 43:21-16(d)(1) provides in relevant part:

When it is determined by . . . the Director of the Division of Unemployment and Temporary Disability Insurance . . . that any person . . . has received any sum as benefits . . . while . . . not entitled to receive such sum as benefits, such person, unless the director (with the concurrence of the controller) directs otherwise by regulation, shall be liable to repay those benefits in full.

"N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

We further agree with the Board's determination that authority to grant a waiver of a refund obligation is vested exclusively in the Director. Howard v. Bd. of Review, 173 N.J. Super. 196, 202 (App. Div. 1980). Indeed, N.J.S.A. 43:21-16(d)(1) specifically provides that any person who receives benefits to which he was not entitled shall be obligated to repay such benefits, "unless the director . . . directs otherwise . . . " (emphasis added). N.J.S.A. 43:21-16(d)(1) supports the Board's conclusion that the Board had no authority to consider Thompson's waiver request because she had not previously requested a waiver from the Director. Accordingly, we affirm the Board's determination that Thompson is obligated to refund the sum of $6,199. Our affirmance is without prejudice to Thompson's right to apply to the Director for a waiver of that obligation in accordance with N.J.A.C. 12:17-14.2. We do not retain jurisdiction.

Affirmed.

 

Pursuant to N.J.A.C. 12:17-14.2(a), the Director may waive recovery of benefits only to the estate of a deceased person or to a permanently disabled person who is no longer able to work, when such claimants have not misrepresented information or withheld a material fact in obtaining benefits. Additionally, the Director may grant a waiver where "recovery of the over-payment . . . would be patently contrary to the principles of equity." N.J.A.C. 12:17-14.2(a)(3).

(continued)

(continued)

5

A-2342-06T2

January 18, 2008