RAUL R. DACOSTA v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RAUL R. DACOSTA,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

Respondent.

_______________________________________________________

July 8, 2014

Submitted April 29, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Board of Review, Department of Labor, Docket No. 367,700.

Pfaltz & Woller, P.A., attorneys for appellant (Michael A. Katz, of counsel and on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief).

PER CURIAM

Raul R. DaCosta appeals from an October 26, 2012 final agency decision of the Board of Review (the Board), which affirmed the June 8, 2012 decision of the Appeal Tribunal (the Tribunal) finding, pursuant to N.J.S.A. 43:21-16(d), that DaCosta was liable to repay $40,880 previously received unemployment benefits. After reviewing the record in light of the contentions advanced on appeal, we affirm.

L'Oreal USA employed DaCosta as a compounder from August 25, 1975, through May 1, 2009, when he was laid off due to a company reorganization. DaCosta filed a claim for unemployment benefits on May 3, 2009, and subsequently began receiving benefits at a rate of $584 per week. At some point thereafter, DaCosta's health deteriorated due to degenerative disc disease, sciatica, diabetes, and arthritis. Due to his worsening physical condition, on July 19, 2010, DaCosta applied for disability benefits through the Social Security Administration (SSA). While his disability application was pending, DaCosta continued to receive his unemployment compensation and did not report his inability to work.

On February 7, 2011, the SSA informed DaCosta that he had been awarded disability benefits in the amount of $1948 per month retroactive to October 2009. Pursuant to this award, the SSA paid DaCosta a lump sum of $31,168 for the benefits owed to him from October 2009 through January 2011. Upon receipt of the SSA award notice, DaCosta went to his local unemployment office to request the discontinuation of his unemployment benefits.

On March 30, 2011, an unemployment claims examiner interviewed DaCosta telephonically regarding his receipt of past benefits. In a September 19, 2011 letter, the Deputy Director for the Division of Unemployment Insurance (the Deputy) found that DaCosta was not eligible for the unemployment benefits he collected from the week ending October 10, 2009, through the week ending February 5, 2011, because during that time period he was not actually able to work. The Deputy demanded repayment of the $40,880 in unemployment benefits DaCosta had received while unable to work, in accordance with N.J.S.A. 43:21-16(d).

On October 19, 2011, DaCosta requested a full waiver of the recovery of his unemployment benefits under N.J.A.C. 12:17-14.2. DaCosta claimed that at no time did he "misrepresent or withhold any material fact in obtaining his unemployment benefits." On December 12, 2011, the Deputy denied DaCosta's waiver request, finding that his "[r]eceipt of the overpaid benefits was not without fault on [DaCosta's] part" because he "withheld information regarding [his] disability while collecting unemployment benefits."

DaCosta appealed this decision, again requesting a full waiver or, in the alternative, a reduction of the repayment amount so as only to require repayment of benefits received after his July 17, 2010 disability benefits application. In his appeal, DaCosta certified that, despite the pain caused by the ailments that gave rise to his disability application, he continued to seek employment and report his job search efforts as required.

The Tribunal conducted a telephonic hearing at which Debora Harlica, an investigator with the Bureau of Benefits Payment Control, and DaCosta testified. Harlica explained that, in order to collect unemployment, "the claimant has to be able and available for work," and in order to qualify for SSA disability benefits he or she has to be permanently and totally disabled. She further testified that DaCosta "kept collecting, kept calling in saying [he was] able and available for work" while simultaneously applying for disability saying he was permanently disabled. The appropriate course of action, according to Harlica, would have been for DaCosta to file for temporary disability while his Social Security disability claim was pending.

On June 8, 2012, the Tribunal affirmed the Deputy's decision, finding that DaCosta had received unemployment benefits for the period he was also awarded Social Security disability benefits. The Tribunal found DaCosta's claim that he was able to work until he received the SSA disability determination to be incredible based upon the award from the SSA declaring him disabled as of October 2009. The Tribunal also determined that DaCosta was ineligible for a waiver because he "claimed unemployment benefits during a time he was disabled," which was "clear evidence of misrepresentation on his behalf[.]" Moreover, the Tribunal found that the date SSA determined DaCosta was totally and permanently disabled, not the date he filed for disability, governed the computation of his required repayment. Thus, the Tribunal concluded that DaCosta was liable for the entire amount of the overpayment from October 2009 to February 2011.

DaCosta appealed the Tribunal's decision. Based upon a review of the record below, the Board affirmed the Tribunal's decision on October 26, 2012. The Board determined there was no need for a further hearing because DaCosta "was given a full and impartial hearing and a complete opportunity to offer any and all evidence[.]" The Board found DaCosta liable for the full repayment and declined to grant his request for a waiver. This appeal followed.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71-72 (1985) (citing Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).

In order to receive Social Security disability benefits, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.A. 423(d)(1)(A); see also Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001).

In order to be eligible for unemployment benefits, the claimant must be "able to work," "available for work," and must have "demonstrated to be actively seeking work[.]" N.J.S.A. 43:21-4(c)(1). A claimant remains eligible for unemployment benefits if he or she suffered any sickness "resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits . . . except for the inability to work and has furnished notice and proof of claim to the division[.]" N.J.S.A. 43:21-4(f)(1). Benefits paid under this subsection are "charged to and paid from State disability benefits fund established by the 'Temporary Disability Benefits Law[.]'" N.J.S.A. 43:21-4(f)(3); see also Butler v. Bakelite Co., 32 N.J. 154, 160-61 (1960) (explaining the genesis and application of subsection (f)).

Under this subsection, an eligible but disabled claimant is rendered ineligible to collect unemployment benefits "[f]or any week with respect to which or a part of which the individual has received or is seeking benefits under any . . . disability benefits law of any other state or of the United States[.]" N.J.S.A. 43:21-4(f)(1)(D). A claimant is also ineligible "[f]or any week with respect to which or part of which the individual has received or is seeking disability benefits under the 'Temporary Disabilities Benefits Law[.]'" N.J.S.A. 43:21-4(f)(1)(E); see also N.J.S.A. 43:21-30 (stating that no temporary disabilities benefits will be paid while unemployment benefits or other disabilities benefits of any other state or of the federal government are also being paid). Thus, it is clear that a person cannot receive duplicate benefits such as unemployment and Social Security disability for the same period of time.

Furthermore, benefits received for which a person is not eligible must be repaid. Specifically, when the appropriate authority determines

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.

[N.J.S.A. 43:21-16(d)(1) (internal citations omitted).]

Where such repayment is required, when a claimant requests, the Director "may grant the claimant a full waiver of recovery of an overpayment of benefits only after the Director has determined that the claimant has not misrepresented or withheld any material fact in obtaining benefits" under certain circumstances, including "[w]here the claimant is disabled and no longer able to work[.]" N.J.A.C. 12:17-14.2(a). When determining if a claimant "misrepresented or withheld any material fact in obtaining benefits, either the willful or the negligent misrepresentation or withholding of any material fact shall, alone, constitute sufficient grounds for a determination by the Director that the claimant is not eligible to receive a waiver of recovery of an overpayment of benefits." N.J.A.C. 12:17-14.2(b). Additionally, "a claimant's current receipt of Social Security disability benefits may be deemed evidence of current permanent disability." N.J.A.C. 12:17-14.2(c).

Applying our highly deferential standard of review, we find no occasion to interfere with the Board's decision. The record amply supports the Board's conclusion that DaCosta was ineligible for unemployment benefits beginning in October 2009 because he simultaneously received Social Security disability benefits for the same period, which is prohibited under New Jersey law. See N.J.S.A. 43:21-4(f)(1)(D). Because DaCosta received duplicative benefits, the Board correctly found that he was liable for the repayment of his unemployment benefits. See N.J.S.A. 43:21-16(d)(1).

Moreover, the Board's decision not to grant a waiver to DaCosta was not arbitrary, capricious, or unreasonable. See Barry, supra, 100 N.J. at 71. The record supports the Board's conclusion that DaCosta misrepresented a material fact in obtaining his unemployment benefits. See N.J.A.C. 12:17-14.2(a). Namely, DaCosta claimed to be able and available to work, as required by N.J.S.A. 43:21-4(c)(1), while simultaneously claiming to the SSA to be completely unable to engage in any substantial gainful activity, as required by 42 U.S.C.A. 423(d)(1)(A). Since the SSA's grant of disability is proof of permanent disability, N.J.A.C. 12:17-14.2(c), DaCosta's receipt of retroactive benefits to October 2009 demonstrates that he has been permanently and totally disabled since that time. As the State noted, DaCosta's receipt of disability was based upon information supplied by him and his physicians demonstrating the significant nature and extent of his disability. See 42 U.S.C.A. 423(d)(5)(A). Nothing in the record shows that DaCosta contacted the SSA to protest or change an incorrect disability date.

In sum, although we are sympathetic to DaCosta's situation, we are convinced that the Board's decision is based upon sufficient credible evidence in the record and therefore we must uphold the decision. See Lourdes Med. Ctr., supra, 197 N.J. at 367.

Affirmed.