AMANDA A. HOLDER v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AMANDA A. HOLDER,

Appellant,

v.

BOARD OF REVIEW and

STONE CENTER OF NEW

JERSEY, LLC,

Respondents.

________________________________

October 20, 2016

Submitted October 11, 2016 Decided

Before Judges Sabatino and Currier.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 023,952.

Amanda A. Holder, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief).

Respondent Stone Center of New Jersey, LLC has not filed a brief.

PER CURIAM

Appellant Amanda A. Holder seeks reversal of the Board of Review's final agency decision dated April 24, 2015, determining her ineligible for certain unemployment benefits she received, and ordering her to refund to the Division of Unemployment Insurance the sum of $1,252 in overpaid benefits.

Appellant was employed by Stone Center of New Jersey in its business office. In or about the beginning of 2013, the company reduced appellant's hours from full-time employment to a part-time level approximating twenty to twenty-five hours per week. Appellant applied for unemployment benefits and she was paid weekly amounts based on her application. However, the Division thereafter determined that appellant had been overpaid because of regulations that limit eligibility when a claimant is engaging in part-time work. See N.J.A.C. 12:17-2.1 (defining "partial unemployment" for purposes of eligibility). Consequently, the Division sought a refund from appellant of overpaid benefits, pursuant to N.J.S.A. 43:21-16(d).

Appellant filed an administrative appeal of the agency's determination of partial ineligibility. On October 9, 2014, the Appeals Tribunal dismissed the administrative appeal of the ineligibility determination as untimely, pursuant to N.J.S.A. 43:21-6(b)(1). The Board of Review upheld that untimeliness ruling, but remanded the matter back to the Tribunal for recalculation because the Tribunal had not addressed appellant's ineligibility for certain claim weeks.

The Tribunal conducted a second hearing on January 12, 2015, in which appellant participated by telephone. The Tribunal specifically found that appellant had part-time earnings of $500 for the week ending February 2, 2013; $400 for the week ending February 9, 2013; $375 for the week ending March 2, 2013; $427 for the week ending March 9, 2013; and $413 for the week ending April 27, 2013. As a result of these part-time earnings, the Tribunal determined that she would not be eligible for benefits on those particular weeks because her earnings exceeded the allowable partial benefit rate of $290.

Appellant challenged the Tribunal's January 2015 decision before the Board of Review. In its final agency decision, the Board of Review concluded that, due to her part-time earnings, appellant was liable to the Division for a total refund of $1,252. Appellant now contests the Board of Review's decision. She argues that she was entitled to full benefits, despite her part-time earnings. She further contends that, given the chronology of events and her financial situation, it is inequitable to require her to refund any overpaid amounts to the Division.

Our scope or review is limited. In matters involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997. "'In 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.'" Brady, supra, 152 N.J. at 210 (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981)). Unless its action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

Applying these principles, we affirm the Board of Review's determination of appellant's ineligibility for benefits for the six weeks in question. N.J.A.C. 12:17-2.1 clearly states that a claimant for unemployment benefits is only eligible if she "earns remuneration which does not exceed the weekly benefit rate plus 20 percent of such rate." Here, appellant's weekly benefit rate, if she remained totally unemployed, was $242. If appellant worked part-time, her allowable partial benefit rate was $242 plus 20% (i.e., $290) minus her part-time earnings for that week. It is undisputed that appellant earned part-time income well above that $290 weekly level for the six weeks in question. Appellant presents no legal authority or factual proof to the contrary. The agency is obligated to apply the law, including the pertinent regulations. We also discern no basis to set aside the agency's determination that appellant's first administrative appeal was untimely.

That said, we are mindful of appellant's assertion of financial hardship. We decline the agency's argument that a hardship waiver is procedurally barred in these circumstances, particularly in light of the apparent confusion that led to multiple requests by the agency for refunds in varying sums and multiple hearings before the Tribunal.

The matter is accordingly remanded for the agency to consider appellant's request for a hardship waiver on its merits pursuant to N.J.A.C. 12:17-14.2. We express no views on the appropriate outcome on remand, and we do not retain jurisdiction.

Affirmed in part, remanded in part.