ANGELA R. BELTRE v. BOARD OF REVIEW, DEPARTMENT OF LABOR, SCHOLASTIC BUS CO ACCREDITED HEALTH SERVICE NYHC NEWCO PAXXON, t/a HELPING HANDS HEALTHCARE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5315-07T15315-07T1

ANGELA R. BELTRE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, SCHOLASTIC BUS CO.,

ACCREDITED HEALTH SERVICE,

NYHC NEWCO PAXXON, t/a HELPING

HANDS HEALTHCARE,

Respondents.

_______________________________

 

Submitted October 27, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Board of Review,

Department of Labor, Docket No. 180,087.

Dennis J. Cummins, Jr., attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondents Scholastic Bus Co., Accredited Health Service and Helping Hands Healthcare have not filed briefs.

PER CURIAM

Angela R. Beltre appeals from a decision of the Department of Labor (DOL), dismissing as untimely her appeal from disqualification for unemployment benefits and assessment of refunds and fines. We affirm.

Appellant, a 51-year-old widow whose primary language is Spanish, worked part-time jobs as a school bus driver and a home health aide for three employers during the relevant time period from 2002 to 2007. She collected unemployment benefits when school was not in session.

By four letters to appellant, all dated January 4, 2008, the DOL listed a total of sixty-one weeks from July 27, 2002, through September 8, 2007, during which she received overpayment of benefits. The letters indicated that she was required to refund a total of $7,697. The letters also notified appellant that she had ten days to respond, that a determination would be made on the basis of the information available to the DOL if she did not respond, that she could request a hearing, and that fines and disqualification for one year could be imposed as penalties for willful misrepresentation of her income.

In accordance with instructions on the letters, appellant handwrote responses on the backs of the letters stating that she had not earned the amounts stated, had not worked during some of the periods shown, or had not received unemployment benefits as listed in the letters, and she requested a hearing. The record before us does not show when her handwritten responses were sent to the DOL.

By four letters, all dated January 24, 2008, the DOL notified appellant of its determination that she was not eligible for unemployment benefits during the sixty-one weeks previously listed because she had falsely or fraudulently misrepresented her income. The letters included schedules showing the overpayment for each listed week. Pursuant to N.J.S.A. 43:21-5 and -16d, the letters imposed penalties of disqualification from receipt of unemployment benefits for one year, refund of a total of $7,697, and total fines of $1,924.25, which is twenty-five percent of the refunds due. The total amount payable by appellant was $9,621.25.

Under the subheading "Appeal Procedure," the four letters stated in both English and Spanish: "If you disagree with this decision, you must file a written appeal within seven (7) calendar days after delivery or within ten (10) days after the mailing of this notice." Appellant had until February 3, 2008, to file an appeal. She did not do so.

By letter dated February 19, 2008, and received by the DOL on February 22, 2008, an attorney filed an appeal on appellant's behalf and requested a hearing and factual finding regarding the DOL's determination.

On April 9, 2008, a telephone hearing was held by the Appeal Tribunal. Appellant participated with her attorney and an interpreter. A DOL investigator testified that he obtained information in 2007 through computer cross-checking that appellant had received more pay from her jobs than she had reported. He then recapitulated the overpayments as contained on the schedules provided in the several letters sent to appellant.

Appellant testified that she disagreed with the DOL's allegations, but she could not be specific regarding any particular week or amount received because there were "too many figures for me to look at." When the Appeals Examiner asked whether she had any proof to dispute the DOL's information about the pay she had received and the amounts of overpayment, she said she showed her paystubs when she applied for unemployment benefits and relied upon the personnel at the unemployment office to determine the amount of benefits to which she was entitled.

The Appeals Examiner also briefly questioned appellant about why she had not filed a timely appeal within ten days of the January 24, 2008 letter-notices. She testified that she had "family difficulties," that a family member was in the hospital. Her attorney then said that she had come to see him about the letter-notices on February 19, 2008, the same date that he had requested a hearing. When appellant was asked if she was aware of the ten-day deadline for mailing a request for an appeal, she responded that she had not opened her mail "until I came back from the hospital." She said she was "always running back and forth to the hospital."

As the hearing ended, the Appeals Examiner gave appellant another opportunity to present evidence refuting the DOL's figures, but she had no response.

The Appeal Tribunal issued a written decision on April 10, 2008, dismissing the appeal on the ground that it had not been filed within ten days, as required by N.J.S.A. 43:21-6b(1), and good cause had not been shown for the late filing.

Appellant took a further administrative appeal to the DOL Board of Review, also submitting patient discharge instructions for three dates December 17, 2007; January 24, 2008; and February 10, 2008 showing that her newly-born grandson was discharged from St. Joseph's Regional Medical Center on those dates. The Board issued an order on May 30, 2008, affirming the decision of the Appeal Tribunal. Appellant then filed a notice of appeal to this court.

Subsequently, on December 11, 2008, we granted appellant's motion for temporary remand to the Board to reconsider whether the administrative appeal had been filed out of time for good cause. The Board issued a written decision on January 8, 2009, confirming dismissal of the appeal.

Appellant argues before us that her due process rights were violated by the ruling of the Board and that there was insufficient evidence that she had committed a fraud in reporting her income.

Our standard of review is limited. Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Protec., 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 Rev., 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).

The January 24 letters gave notice of the statutory time period contained in N.J.S.A. 43:21-6b(1) for the filing of an appeal. In Rivera v. Bd. of Rev., 127 N.J. 578, 586 (1992), the Supreme Court held that the statutory time period is not jurisdictional and that exceptions must be permitted to protect a claimant's entitlement to due process before the DOL imposes penalties. The Court made no determination of how to provide due process in all circumstances but suggested that a good cause exception might be appropriate. Id. at 586, 590.

After Rivera, the DOL promulgated a regulation allowing a good cause exception for late appeals. N.J.A.C. 12:20-3.1(i) provides:

A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
 
1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or
 
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

In this case, the Board considered this regulation and stated:

Simply put, the Board of Review does not believe the claimant's negligence in opening her mail constitutes good cause for filing a late appeal. There is nothing in the claimant's testimony before the Appeal Tribunal to suggest that the illness of a family member impacted the claimant in such a fashion as would have prevented her from appealing within the statutory time limit.

In reaching its decision, the Board applied the correct statute and regulation. Consequently, its decision was not contrary to law.

Nor was it arbitrary, capricious, or unreasonable. While the hospitalization of appellant's grandson warrants sympathy, the documents provided by appellant do not show good cause for deviating from the statutory time for appeal.

The first hospital discharge, which was three days after the grandson's birth, and the second, dated the same January 24 date that the four DOL letter-notices were mailed, are irrelevant to appellant's claim of difficulties preventing her from complying with the time period for appeal. Those hospitalizations occurred before the ten-day time period began to run.

The last discharge occurred on February 10, 2008, but the discharge document does not state the length of hospitalization or include a legible diagnosis. Appellant provided no documents or other evidence of what prevented her from opening her mail and filing an appeal during the time from January 24 through February 3, 2008.

Furthermore, no formal document or language is required to file an appeal. N.J.A.C. 12:20-3.1b. "Any written statement, including a facsimile, electronic mail or other electronic transmission, filed within the time for appeals allowed by law, which sets forth the fact that a party to a determination made by the division is aggrieved thereby or dissatisfied therewith, shall be deemed to be an appeal." N.J.A.C. 12:20-3.1a. Appellant handwrote responses to the letters dated January 4, 2008, and requested a hearing. A hearing was provided. A similar response during the ten-day time period would have sufficed to comply with the appellant's obligation to file a timely appeal.

At the telephone hearing on April 9, 2008, appellant had no evidence to refute the DOL's claims that she had received unreported wages during the time that she was collecting unemployment benefits. All she could do was express her general disagreement with the DOL figures.

Finally, as to evidence supporting the fraud penalties, appellant blames DOL personnel for determining the amount of benefits she received. But the record before the DOL revealed that she had failed to report any income whatsoever during weeks that she had actually received wages from one or more of her part-time employers.

In sum, appellant failed to show good cause for not filing a timely administrative appeal and, ultimately, had no contrary evidence to present when she did receive a hearing. The Board's decision to dismiss the appeal was not arbitrary, capricious, or unreasonable.

 
Affirmed.

(continued)

(continued)

10

A-5315-07T1

November 24, 2009