CHRISTINE NORIEGA v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0955-05T10955-05T1

CHRISTINE NORIEGA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and CENDANT CORPORATION,

Respondents.

________________________________________________

 

Submitted July 17, 2007 - Decided August 3, 2007

Before Judges C.S. Fisher and Grall.

On appeal from a final decision of the Board of Review, Department of Labor, BR 62,152.

Christine Noriega, appellant pro se.

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

Respondent Cendant Corporation did not file a brief.

PER CURIAM

Petitioner had been employed by Knoll Pharmaceutical until the company was sold in 2001. She filed an initial claim for unemployment benefits effective July 1, 2001, and collected benefits until exhausting her claim.

Petitioner then became employed by Cendant Corporation in February 2002, but resigned in April 2002. She filed an extended claim for benefits as of April 21, 2002, and was paid benefits through July 6, 2002.

Petitioner thereafter filed a successive benefits claim, which was granted, and collected additional benefits through November 16, 2002. Cendant appealed that determination. Following a hearing, the Appeal Tribunal found petitioner disqualified from receiving benefits as of April 28, 2002 on the ground that she had left her employment without good cause attributable to the work, N.J.S.A. 43:21-5(a). Petitioner appealed that ruling.

The Board of Review affirmed the Appeal Tribunal's decision, but modified the date of disqualification to April 14, 2002. The Board also remanded the matter to the Director for a determination of petitioner's potential liability for a refund of benefits pursuant to N.J.S.A. 43:21-16(d).

The Director held petitioner liable for a refund in the amount of $12,920. Petitioner sought a waiver of this obligation pursuant to N.J.A.C. 12:17-14.2, which the Director denied. Petitioner appealed this determination. The Appeal Tribunal reversed, but the Appeal Tribunal's decision was reversed by the Board, which remanded the waiver issue for a hearing.

The Director found insufficient grounds for a waiver. The Appeal Tribunal affirmed that ruling, the Board of Review affirmed the Appeal Tribunal's decision, and petitioner has appealed that ruling to this court.

N.J.A.C. 12:17-14.2(a) permits the Director to waive the repayment of benefits if to require repayment would be "patently contrary to the principles of equity." In making that determination, the Director is charged to consider whether the overpayment "did not occur due to a claimant's willful misrepresentation or nondisclosure to the Division," N.J.A.C. 12:17-14.2(a), and the "capacity of the particular claimant to recognize the error resulting in the overpayment," N.J.A.C. 12:17-14.2(b). This regulation also indicates that the claimant "will not be considered at fault if the benefits were retained because of the claimant's reasonable good faith reliance on the Division." Ibid.

The Director found that recovery of the overpayment would not be contrary to the principles of equity and good conscience. He considered the earnings and expenses of petitioner and her spouse, and the fact that they were the owners of a home that they had purchased for $180,000. In light of this and other findings regarding the financial status of petitioner and her husband, the Appeal Tribunal affirmed, as did the Board. The Board's written decision also indicated its willingness to negotiate a repayment agreement that would fit petitioner's circumstances.

Our standard of review prevents our intervention in such matters except when the agency's decision is arbitrary, capricious or unsupported by substantial credible evidence in the record. See, e.g., In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Substantial evidence is defined as "such evidence as a reasonable mind might accept to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). In addition, "[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Board of Review, 152 N.J. 197, 210 (1997).

The Director was presented with the financial information provided by petitioner and determined that repayment was not inconsistent with equitable principles. The Board has also indicated its willingness to enter into an agreement that would require periodic payments from petitioner that are consonant with her own particular circumstances. In considering this final agency decision, and after carefully reviewing the record on appeal, we conclude that the decision is not arbitrary or capricious and is entitled to our deference.

 
Affirmed.

(continued)

(continued)

5

A-0955-05T1

August 3, 2007