EDWARD T. CASSIDY v. BOARD OF REVIEW, DEPARTMENT OF LABOR and GELMAN PLUMBING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1205-09T31205-09T3

EDWARD T. CASSIDY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and GELMAN PLUMBING,

Respondents.

_______________________________________

 

Submitted August 10, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from the Board of Review, Department of Labor, Docket No. 225,428.

Edward T. Cassidy, appellant pro se.

Paula T. Dow, 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).

Respondent Gelman Plumbing has not filed a brief.

PER CURIAM

Claimant Edward Cassidy appeals from a final decision of the Board of Review, Department of Labor, dated October 21, 2009, affirming denial of his request for a waiver of the requirement that he refund unemployment benefits and pay a fine. We reject the appeal and affirm the decision of the Board of Review.

On March 9, 1997, Cassidy filed for unemployment benefits after being terminated from his plumbing job. He was paid a weekly benefit rate of $340 through November 22, 1997.

On August 23, 2000, the Director of the Division of Unemployment and Disability Insurance (the Division) notified Cassidy that he was liable for a refund of benefits totaling $2,380 pursuant to N.J.S.A. 43:21-16d. The demand for refund followed an investigation by the Division revealing that Cassidy had obtained new full-time employment for part of the relevant time period in which he collected unemployment payments. The Director found that Cassidy had obtained benefits "through false or fraudulent misrepresentation" in that he had failed to disclose to the Division that he was working and earning income. In addition to the refund, the Director assessed a fine of $595 under N.J.S.A. 43:21-16a, and accrued interest of $610.60, for a total demanded from Cassidy of $3,585.60.

Cassidy appealed the Director's decision. The Appeal Tribunal affirmed the decision on April 26, 2002. Cassidy initiated further appeal to the Board of Review, but that appeal was dismissed under N.J.S.A. 43:21-6c because it was filed beyond the ten-day deadline. Cassidy did not pursue the matter further at that time.

On March 1, 2009, after learning of a judgment against him for the amounts due and still remaining unpaid, Cassidy applied for waiver of the overpayment and fine under N.J.A.C. 12:17-14.2 on the ground that he is now disabled. By Notice of Determination dated March 10, 2009, the Director denied his application for waiver. On appeal of that decision, the Appeal Tribunal held a telephone hearing on June 25, 2009, and it affirmed the Director's decision, stating:

The claimant in this case received benefits through willful misrepresentati[on] or nondisclosure to the Division. As a result, this receipt of benefits was not without fault by the claimant. Thus, the claimant's request for waiver of refund in the amount of $3,585.60 paid in benefits for the weeks ending 10/11/97 through 11/22/97 [is] denied in accordance with N.J.A.C. 12:17-14.2(a) [and] (b).

On further administrative appeal, the Board of Review affirmed the decision of the Appeal Tribunal on October 21, 2009.

In his appeal before us, Cassidy claims that his rights were violated in ordering the refund and imposing the fine because the hearing officer in 2002 was prejudiced against him, and the Division did not prove that he had collected unemployment benefits at the same time that he was earning income. It is too late, however, to argue the merits of the original decisions of the Division dating back to 2002. Cassidy failed to pursue those appeals in a timely manner as required by N.J.S.A. 43:21-6c. See Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963); see also Von Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.) (decision of Appeal Tribunal is final if appeal is not initiated within ten days), certif. denied, 130 N.J. 10 (1992).

With respect to the 2009 decisions denying his application for waiver, from which Cassidy filed timely appeals, we see no reason to intervene. The Division's investigation in 2000 determined that Cassidy was not entitled to all the unemployment benefits he received in 1997 because he was working full time during a number of weeks that he collected payment. In the June 25, 2009 telephone hearing, Cassidy offered no evidence to refute the Division's claims but said that he did not remember the dates that he worked because it was so long ago. Also, he stated he believed the employer was responsible for reporting his earnings, and so, he did not report them himself. The Appeal Tribunal rejected this testimony as demonstrating that Cassidy bore no responsibility for receiving the benefits while working. Cassidy certainly knew whether he was earning income at the same time that he was collecting unemployment benefits. The Division's claim that Cassidy had intentionally failed to disclose his income while collecting benefits was not refuted at the hearing.

N.J.S.A. 43:21-16d(1) states:

When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise 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.

[(Statutory citations omitted.)]

The statute "requires repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997); Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973). Cassidy was properly held liable for repayment.

In addition, N.J.S.A. 43:21-16a provides for the imposition of fines for making false statements or knowingly failing to disclose a material fact in order to receive unemployment benefits. A fine was appropriately imposed on Cassidy for failing to disclose that he was working and earning income.

The only issue in 2009 was whether Cassidy was entitled to a waiver of the refund and fine because he had become disabled and was no longer able to work.

Under N.J.A.C. 12:17-14.2a, the Director may grant the claimant a full waiver of recovery of an overpayment of benefits if the claimant is deceased, if the claimant is disabled and no longer able to work, or if the recovery of the overpayment, as determined by the Director with the Controller's concurrence, would be patently contrary to the principles of equity. However, the Director will not grant a waiver to a claimant that has misrepresented or willfully withheld any material fact in obtaining benefits that he was not entitled to receive.

The burden of proof is on the claimant to establish that he is entitled to a waiver. Here, Cassidy asserts that he is collecting Social Security disability benefits, which is evidence of permanent disability under N.J.A.C. 12:17-14.2c. He contends that his disability entitles him to waiver of the refund and fine demanded. He also claims that he believed he had won the dispute in 2002 because he heard nothing from the Division in attempting to collect the refund and fine. The Division's determination, however, that Cassidy was not entitled to a waiver because he "withheld [a] material fact in obtaining benefits," is not refuted by these contentions.

Our standard of review is limited. Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). We will reverse a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We find no error in the final decision of Board of Review denying waiver of the refund, fine, and accrued interest.

Affirmed.

 

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A-1205-09T3

August 20, 2010