JEREMY T. BRAUN v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEREMY T. BRAUN,

Appellant,

v.

BOARD OF REVIEW and

DCH AUTO GROUP,

Respondents.

______________________________________

April 28, 2014

Submitted September 25, 2013 Decided

Before Judges Nugent and Accurso.

On appeal from the Board of Review, Department of Labor, Docket No. 335,536.

Jeremy T. Braun, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).

PER CURIAM

Jeremy T. Braun appeals from a final determination of the Department of Labor's Board of Review (Board) requiring him to refund $1434 for unemployment compensation benefits paid from May 16 through June 5, 2010. Braun admits that he was ineligible for benefits for those weeks. He contends, however, that the Department of Labor suspended his benefits "beginning the last week of March, 2011" when it took this matter under review, although he did not become reemployed until May 16, 2011. Applying his overpayment to the period he maintains his benefits were wrongly suspended, he calculates that he is owed one week of benefits. Because the Board failed to address this issue in calculating the refund owed, we reverse and remand for further proceedings.

Braun was employed by DCH Honda until March 31, 2010 when he was terminated after he exhausted his sick leave following back surgery. He received disability payments through May 15, and thereafter applied for unemployment. He was determined to be eligible for a $478 weekly unemployment benefit with a maximum benefit of $12,428 for twenty-six weeks commencing May 16. Braun received $8126 in benefits through September 11, 2010. The Board's documents do not address payments after that date.

Braun contends that he was still receiving benefits in March 2011 when the Division of Unemployment and Disability (Division) instituted this review and suspended his benefits. Although the issue is not addressed in the record, it would appear as if Braun continued to receive unemployment benefits after twenty-six weeks pursuant to the Emergency Unemployment Compensation Act, Pub. L. No. 110-252, 4001, Title IV, 122 Stat. 2323 (June 30, 2008) (printed as a note to 26 U.S.C.S.

3304). Braun claims that he was entitled to continued benefits until his return to full-time employment on May 16, 2011.

The Division instituted its review because it determined that Braun's physician had not cleared him to return to work until September 10, 2010. The Deputy thus determined that Braun was ineligible for benefits from May 16 through September 11 because he was not able to work, and the Director demanded that Braun refund the $8126 in benefits he received for those weeks.

Braun appealed that determination to the Appeal Tribunal. During the telephonic hearing conducted by the examiner, Braun testified that his physician released him for light duty on June 1, 2010, and although he searched for work starting that date, he did not become reemployed until May 16, 2011. Addressing the hearing examiner's questions regarding the refund, Braun stated, "The only thing I want on the record is the same thing that was in my appeal notice that, you know, my benefits were denied and withheld from me . . . as of March 2011 and I still was not working until May." The Appeal Tribunal affirmed the Deputy's redetermination of Braun's ineligibility for benefits and the Director's demand for the overpayment.

Braun appealed to the Board. The Board determined that Braun was able to perform light duty work as of June 1, 2010 and actively sought work meeting those restrictions. Accordingly, the Board determined that Braun was eligible for benefits from June 6 through September 11, 2010 pursuant to N.J.S.A. 43:21-4(c)(1). The Board affirmed the Appeal Tribunal's determination that Braun was ineligible for benefits from May 16 through June 5, 2010 and thus modified the Tribunal's decision by finding Braun liable to refund the sum of $1434 for benefits received for those weeks. It did not address Braun's claim that the overpayment should be offset against the benefits Braun claims were wrongly withheld for several weeks in 2011. This appeal followed.

In his pro se brief to this court, Braun concedes that he was ineligible for benefits May 16 through June 5, 2010. He contends, however, that no refund is due because the Division failed to pay him benefits from March 27 through May 14, 2011, a period in which he was eligible for benefits. The Board does not address the issue in its responsive brief, instead, arguing at length for the position Braun readily concedes.

A reviewing court must defer to "an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). Conversely, such court is obligated 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,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Because neither the Appeal Tribunal nor the Board addressed Braun's contention that his benefits were wrongly suspended for a period while his benefits were under review, we cannot determine whether the agency's conclusion that Braun owes $1434 for overpayments is supported by sufficient evidence in the record. An agency's failure "to address critical issues, or to analyze the evidence in light of those issues," renders its decision arbitrary and subject to reversal. Green v. State Health Benefits Comm'n, 373 N.J. Super. 408, 415 (App. Div. 2004).

Although we affirm the determination that Braun was ineligible for benefits from May 16 through June 5, 2010, Braun has raised questions of fact arguably pertinent to the Board's determination that a refund is due. The Board's decision to deny Braun's appeal without addressing that issue or remanding for further fact-finding was plainly arbitrary. Cf. Mullarney v. Bd. of Review, 343 N.J. Super. 401, 408-10 (App. Div. 2001) (remanding the question of a refund waiver to the Division to be decided in the first instance by the Division, applying its expertise).

Affirmed in part; reversed in part and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.