JAMES A. PETERS v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1451-11T4

JAMES A. PETERS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND WORKFORCE DEVELOPMENT,

AND MATHIS CONSTRUCTION CO., INC.,

Respondents.

________________________________________________________________

December 21, 2012

Submitted December 17, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 319,711.

James A. Peters, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon T. Hawkins, Deputy Attorney General, on the brief).

Respondent Mathis Construction Co., Inc., has not filed a brief.

PER CURIAM

Claimant James A. Peters appeals from a final decision of the Board of Review, Department of Labor and Workforce Development, dated October 18, 2011, 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 September 24, 2008, the Director of the Division of Unemployment and Disability Insurance (Division) notified Peters that he was liable for a refund of benefits totaling $16,570 in overpaid unemployment insurance benefits, including fines, pursuant to N.J.S.A. 43:21-16(d) and N.J.S.A. 43:21-16(a). The demand for refund followed an investigation by the Division revealing that Peters had certified that he was unemployed when, in fact, he was actually working while he collected unemployment payments. The Director found that Peters had obtained benefits "through false or fraudulent misrepresentation" because he failed to disclose to the Division that he was working and did not report his earnings. The fraudulent claims were dated January 15, 2006, January 14, 2007, and January 13, 2008. Peters never appealed this determination, either to the Board of Review or to this court.

Peters made two payments on the outstanding balance of $16,570: $8000 on October 8, 2008, and $3000 on October 15, 2008. The remaining balance is $5477.

On December 20, 2010, Peters applied for a waiver of the overpayment and fine under N.J.A.C. 12:17-14.2 on the ground that he was deemed permanently disabled as of May 6, 2008. By Notice of Determination dated January 10, 2011, the Director denied his application for an Overpayment Recovery Waiver because of the prior fraud determination. On March 30, 2011, the Appeal Tribunal held a telephonic hearing and mailed a decision on April 4, 2011, affirming the Director's decision, stating:

In this case the claimant did not disclose his earnings while collecting unemployment benefits during the claims dated 01/15/06, 01/14/07 and 01/13/08. This action caused an overpayment of benefits. As the claimant failed to report this information[,] he is considered to be a[t] fault and is liable for repayment in accordance with N.J.A.C. 12:17-14.2.

On further administrative appeal, the Board of Review affirmed the decision of the Appeal Tribunal on October 18, 2011.

In his appeal before us, Peters first claims that the agency failed to prove that he made affirmative misrepresentations or purposely deceived or engaged in conduct that was fraudulent. Secondly, he asserts that he relied on promises made to him by an agency collection agent who told him that "if he repaid the $11,000, in full, any fines or penalties would be waived."

It is too late, however, to argue the merits of the original decision of the Division dating back to 2008. Peters failed to pursue those appeals in a timely manner as required under N.J.S.A. 43:21-6(c). See Lowden v. Bd. of Review, 78 N.J. Super. 467, 189 (App. Div. 1963); see alsoVon Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.) (noting that an Appeal Tribunal decision is final if appeal to the Board of Review is not initiated within ten days), certif. denied, 130 N.J. 10 (1992).1

The only issue properly before the Division in 2010 was whether Peters was entitled to a waiver of the refund and fine. With respect to the 2010 decision denying his application for waiver, from which Peters filed timely appeals, we see no reason to intervene. The Division's investigation in 2008 determined that Peters was not entitled to all the unemployment benefits he received in 2006, 2007, and 2008, because he was working during a number of weeks that he collected payment. In the March 30, 2011 telephonic hearing, Peters claimed that when he received the overpayment determinations in 2008, he had a conversation with his employer and an agency collection agent. Regarding the initial 2008 determination, Peters asserted that in this conversation he was told "it was determined it was not fraud. It was determined that it was an accident." He acknowledged, however, that he did not file an appeal of that determination. The Appeal Tribunal rejected this testimony on the basis that the person he claimed to have spoken to had no authority to make such a determination, and the Division's claim that Peters committed fraud was not refuted at the hearing.

N.J.S.A. 43:21-16(d)(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.
 
[(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). Peters therefore was properly held liable for repayment. In addition, N.J.S.A. 43:21-16(a) 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 Peters for failing to disclose that he was working and earning income.

Under N.J.A.C. 12:17-14.2(a), the Director may grant the claimant a full waiver of recovery of an overpayment of benefits if: (1) the claimant is deceased; (2) the claimant is disabled and no longer able to work; or (3) the recovery of the overpayment, as determined by the Director with the [Division] Controller's concurrence, would be patently contrary to the principles of equity. The Director, however, 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. N.J.A.C. 12:17-14.2(b). The burden of proof is on the claimant to establish that he is entitled to a waiver. Peters failed to do so here. Therefore, the Division's determination that Peters was not entitled to a waiver because he "withheld [a] material fact in obtaining benefits" is clearly supported by law.

Our standard of review is limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will reverse a decision of an administrative agency only if it is contrary to law or "arbitrary, capricious, or unreasonable." Brady, supra, 152 at 210-11. "[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.

A

1 We recognize that N.J.S.A. 43:21-6(c) was amended effective December 1, 2010 to enlarge the appeal time from ten days to twenty days. That amendment does not apply here and, even if it did, it would not authorize Peters' belated present effort to overturn the 2008 fraud determination.