CARLENE M. BRAVO 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NOT FOR PUBLICATION WITHOUT THE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-1955-11T4

CARLENE M. BRAVO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, AND TOWNSHIP OF

HILLSBOROUGH, CENTRAL

INVESTIGATION OFFICE,

Respondents.

____________________________

August 9, 2013

Submitted April 17, 2013 - Decided

Before Judges Grall and Simonelli.

On appeal from the Board of Review, Department of Labor, Docket No. 307,655.

Carlene M. Bravo, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Respondent Township of Hillsborough, Central Investigation Office has not filed a brief.

PER CURIAM

Appellant Carlene M. Bravo appeals from the final decision of respondent Board of Review (Board), which affirmed the decision of the Appeal Tribunal that Bravo must refund $20,160 in unemployment benefits pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, is disqualified from receiving benefits for one year pursuant to N.J.S.A. 43:21-5(g)(1) for making false or fraudulent representations, and must pay a $5040 fine pursuant to N.J.S.A. 43:21-16(a). We affirm.

Beginning in September 2007, appellant was employed part-time by the Township of Hillsborough (Hillsborough). In addition to this employment, from April 2008 to June 15, 2008, appellant was employed full-time by Nixol, Inc. Via the internet, on June 15, 2008, appellant filed a claim for unemployment compensation benefits. She answered yes to the question on the claim form asking if she was working part-time for a regular employer or any other employer and named Hillsborough as her employer.

Appellant received a weekly benefit rate of $560. During the period of the weeks ending July 5, 2008 through March 28, 2009, appellant earned between $336 and $483 per week from her part-time employment, which she did not report to the Division of Unemployment and Disability Insurance (Division). Each week when she claimed her benefits via the internet, she answered no to the question asking if she worked during the weeks claimed.

On October 30, 2010, the Division discovered that appellant had illegally received benefits or attempted to receive benefits as the result of false or fraudulent representation about her part-time work. On November 1, 2010, the Division disqualified appellant from receiving benefits for a one-year period beginning October 30, 2010, held her liable for a refund of $20,160 for benefits received from July 5, 2008 through March 28, 2009, and imposed a $5040 fine.

Appellant appealed. At a hearing before the Appeal Tribunal, appellant admitted she had received earnings from her part-time employment while she received unemployment benefits. She also admitted that no one told her to answer no to the question asking whether she worked during the weeks claimed, and could not recall whether she read information provided on the internet of her rights and responsibilities. She testified that she had reported her part-time employment on her initial claim form, and claimed that she had reported her part-time job to a claims examiner during a recorded telephonic interview; however, the claims examiner responded, "I'm not concerned with your part-time job, I'm handling the claim involving your full-time job[]" and the claims examiner did not mention that appellant had to report her part-time earnings. The Appeal Tribunal examiner's review of the recording did not confirm appellant's.

An investigator for the Department of Labor, Division of Benefit Payment Control (BPC) testified that the BPC determined that appellant had committed fraud because she failed to report any income for thirty-six continuous weeks and that based on that amount of time, her conduct was deemed intentional.

In a March 29, 2011 written decision, the Appeal Tribunal found that appellant worked part-time with earnings throughout the time she claimed benefits; when claiming benefits she repeatedly answered no to the unambiguous question asking if she worked during the weeks claimed; she filed her claim via the internet and the internet provided instructions regarding the reporting of wages from part-time employment; and no Division representative instructed her not to report her part-time earnings. The Appeal Tribunal concluded that based on the evidence, and considering the number of weeks involved, appellant knowingly failed to report her part-time earnings for financial gain, and the receipt of benefits was the result of false or fraudulent representation. Consequently, the Appeal Tribunal affirmed the Division's decision. The Board agreed with the Appeal Tribunal's decision and affirmed. This appeal followed.

On appeal, appellant does not contend that she received incorrect advice that she did not have to report her part-time earnings. Rather, she contends that she did not knowingly fail to report her part-time earnings for financial gain because she received no advice she had to do so.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

Applying the above standards, we discern no reason to disturb the Board's decision. There is no evidence that appellant received incorrect advice about her obligation to report her part-time-earnings, and appellant does not dispute the Appeal Tribunal's finding that the internet provided instructions for the reporting of wages from part-time employment. In addition, appellant was repeatedly asked if she had worked during the weeks in question and she answered no each time even though she was working part-time. We are satisfied that the record supports the Appeal Tribunal's determination that while collecting unemployment benefits, appellant earned wages that she knowingly failed to disclose, and that the Board's decision is not arbitrary, capricious, or unreasonable. We affirm substantially for the reasons expressed by the Appeal Tribunal in its March 29, 2011 written decision, which the Board adopted and affirmed.