REYNAE E. MILLER 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NOT FOR PUBLICATION WITHOUT THE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

REYNAE E. MILLER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and MARS CHOCOLATE

NORTH AMERICA, LLC,

Respondents.

_____________________________________________

August 7, 2014

Submitted July 16, 2014 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 391,176.

Reynae E. Miller, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).

Respondent Mars Chocolate North America, LLC has not filed a brief.

PER CURIAM

Reynae E. Miller appeals from a final decision of the Board of Review (Board) affirming the Appeal Tribunal's denial of unemployment compensation benefits. The Board also affirmed the determination that Miller is liable to refund $2,444 received as benefits. We affirm.

Miller was employed as a finance director by Mars Chocolate North America, LLC (Mars) from 1990 until she was terminated on December 31, 2011. Miller applied for a pension immediately after her termination and began receiving monthly pension benefits of $6,449.05, effective January 1, 2012.

On February 19, 2012, Miller submitted a claim for unemployment benefits and received $611 per week for the weeks ending February 25, 2012, through March 17, 2012. On April 12, 2012, the Director of Unemployment Insurance informed Miller that during her employment with Mars, her employer was the sole contributor to her pension fund and Miller made no contributions. As a result, Miller's unemployment benefits were reduced to zero and she was liable for refunding the benefits improperly paid, totaling $2,444.

Miller appealed and, after a telephone conference, the Appeal Tribunal affirmed the Director's determinations as to the reduction of benefits and the refund. Miller appealed and the Board affirmed.

Our authority to review a determination of the Board of Review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The burden of proof rests on Miller to establish her right to unemployment compensation. See id. at 218.

On appeal, Miller does not challenge the determination that her unemployment benefits were offset by her receipt of pension benefits. Rather, she argues that she should not be responsible to refund the benefits paid to her because she provided "complete and accurate information" and if the benefits "should not have been paid, [it was] through no fault of [hers]."

When the issue on appeal concerns an agency's interpretation of a statute it is charged with enforcing, the "reviewing court should strive to 'give substantial deference to'" the agency's interpretation. In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 423 (2008) (quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)). However, we are "not 'bound by the agency's interpretation' . . . because it is the responsibility of a reviewing court to ensure that an agency's administrative actions do not exceed its legislatively conferred powers." Virtua-West, supra, 194 N.J. at 422 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

N.J.S.A. 43:21-5(a) addresses the situation where an individual who qualifies for unemployment benefits is receiving a pension, and provides in pertinent part:

The amount of benefits payable to an individual for any week which begins in a period with respect to which such individual is receiving a governmental or other pension . . . which is based on the previous work of such individual shall be reduced, but not below zero, by an amount equal to the amount of such pension . . . which is reasonably attributable to such week; . . . provided further that . . . the Commissioner of Labor and Workforce Development may prescribe in regulations which are consistent with the federal Unemployment Tax Act any of the following:

a. The requirements of this section shall only apply in the case of a pension . . . under a plan maintained or contributed to by a base period or chargeable employer . . . .

If the pension and the unemployment benefits derive from the same employer and for an overlapping period of work, the unemployment compensation benefits are reduced. See Giesler v. Bd. of Review, 315 N.J. Super. 28, 32 (App. Div. 1998) ("The purpose of the pension offset statute is to prevent an individual who is retired . . . at a time when he or she is entitled to full pension benefits from collecting both unemployment benefits and retirement benefits based on the same prior work period.").

The refund was requested in accordance with N.J.S.A. 43:21-16(d), which provides in pertinent part:

When it is determined . . . 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.

The statute "requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). Miller therefore was properly held liable for repayment.

Although N.J.A.C. 12:17-14.2 provides that the Director may waive the recovery of benefits under limited circumstances, those facts are not present here, and waiver is not appropriate.

In her brief, Miller notes that in 2010, legislation was proposed that would have extended this waiver provision to claimants who received overpayments through no fault of their own. This legislation was never adopted into law and provides no support for Miller's argument.

We find no error in the final decision of the Board to reduce Miller's weekly benefit rate to zero and to hold her liable to refund benefits improperly paid to her.

Affirmed.