EDWARD T. CASSIDY, JR v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0053-16T4


EDWARD T. CASSIDY, JR.,

        Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT; LABOR READY;
and ACOSTA, INC.,

        Respondents.

_______________________________

              Submitted January 10, 2018 – Decided February 8, 2018

              Before Judges Nugent and Geiger.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              049,395.

              Edward T. Cassidy, Jr., appellant pro se.

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

              Respondents Labor Ready and Acosta, Inc. have
              not filed a brief.
PER CURIAM

      Appellant Edward T. Cassidy, Jr. appeals from a final agency

decision of the Board of Review dated June 30, 2016.                The Board

modified the Appeal Tribunal's determination, holding Cassidy

liable to refund unemployment benefits in the amount of $3971 paid

for the weeks ending January 11, 2014, through June 28, 2014,

pursuant to 
N.J.S.A. 43:21-16(d).           We affirm.

      Between January 11, 2014, and June 28, 2014, Cassidy was

employed part-time by respondent Acosta, Inc.                 Cassidy filed a

claim for unemployment benefits on December 29, 2013, and received

unemployment benefits for the weeks ending January 11, 2014,

through June 28, 2014.         Upon discovering the benefits were paid

in   error,   the   Director    of   the   Division     of   Unemployment   and

Disability    Insurance    Services        issued   a    February   12,     2015

determination disqualifying Cassidy from receiving benefits for

one year commencing February 11, 2015.              This determination was

based on the conclusion that Cassidy had received the benefits

through false or fraudulent misrepresentation.               In addition, the

Director held Cassidy liable for a refund of the $4175 he received

as benefits for the weeks ending January 11, 2014, through June

28, 2014, and imposed a fine of $1043.75 for fraudulently receiving

benefits.


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      On February 17, 2015, Cassidy appealed to the Appeal Tribunal.

In a March 18, 2015 decision, the Appeal Tribunal remanded the

matter for possible redetermination.

      On remand, Cassidy participated in a telephonic hearing on

July 27, 2015.     During the hearing, Cassidy admitted filing for

unemployment benefits for the period in question.               He further

admitted making mistakes while claiming benefits for that period.

Cassidy had reported earnings of only $23 per week during that

period despite actually working twenty-one hours per week, earning

$11.50 per hour or $241.50 per week, more than ten-times higher

than he reported.       The hearing examiner requested Cassidy provide

documentation    from    his   physician   regarding   his   alleged   brain

injury and from his aunt regarding her assistance in filing for

the   unemployment       benefits   in     question.     The    additional

documentation would then be considered at a subsequent hearing.

      On September 23, 2015, the Appeal Tribunal dismissed the

appeal without prejudice as a result of Cassidy's inability to

participate in a scheduled hearing.          The dismissal was reopened,

and Cassidy participated in a further hearing on March 21, 2016,

during which the documentation from Cassidy's physician along with

a statement provided by Cassidy's aunt were reviewed.           In a March

24, 2016 decision, the Appeal Tribunal held Cassidy liable to

refund the $4010 in benefits received for the weeks ending January

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11, 2014 through June 28, 2014.        The Appeal Tribunal also held

Cassidy was not subject to a fine, but he was disqualified from

unemployment benefits for the period in question, pursuant to


N.J.S.A. 43:21-5(g) and 
N.J.S.A. 43:21-16(d).

     On April 11, 2016, Cassidy appealed the Tribunal's decision

to the Board of Review.       On June 30, 2016, the Board of Review

issued a final decision, modifying the decision of the Appeal

Tribunal, holding Cassidy liable to refund $3971, rather than

$4010, pursuant to 
N.J.S.A. 43:21-16(d).       This appeal followed.

     On   appeal,   Cassidy   raises   the   following   point   for   our

consideration:

           THE DEPARTMENT OF LABOR (RESPONDENT) FAILED
           TO OPEN A CASE FILE AGAINST LABOR READY
           (FORMER EMPLOYER). THE DEPARTMENT OF LABOR'S
           (RESPONDENT) INVESTIGATOR WAS HAVING PERSONAL
           ISSUES AND COULD NOT PERFORM THE DUTIES OF HER
           JOB.   THE DEPARTMENT OF LABOR (RESPONDENT)
           KNOWINGLY AND INTENTIONALLY LIED WHEN THEY
           STATED THAT THEY DID NOT KNOW WHERE LABOR
           READY (FORMER EMPLOYER) WAS AND THAT THEY
           COULD   NOT   LOCATE   LABOR   READY   (FORMER
           EMPLOYER). THE ACTIONS OF THE DEPARTMENT OF
           LABOR (RESPONDENT) CAUSED INJURIES TO EDWARD
           T. CASSIDY[,] JR[.'S] (CLAIMANT) LIFE.

     For the first time on appeal, Cassidy raises an unrelated

civil claim, seeking $400,000 in unspecified damages from the

Department of Labor for alleged unpaid wages relating to his former

employment by Labor Ready in May 2012.



                                   4                              A-0053-16T4
     We   exercise    limited     review   of    administrative     agency

decisions.   Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).            We

simply determine whether the administrative decision is arbitrary,

capricious, or unreasonable.        Henry v. Rahway State Prison, 
81 N.J. 571, 579-80 (1980). The burden of proof rests with the person

challenging the action.     In re Arenas, 
385 N.J. Super. 440, 443-

44 (App. Div. 2006).    An individual seeking unemployment benefits

bears the burden of proving that he or she is entitled to receive

them.   Brady, 
152 N.J. at 218; Bonilla v. Bd. of Review, 
337 N.J.

Super. 612, 615 (App. Div. 2001).

     In   matters    involving    unemployment    benefits,   we    accord

deference to the expertise of the Board of Review.       See Brady, 
152 N.J. at 210; Doering v. Bd. of Review, 
203 N.J. Super. 241, 245

(App. Div. 1985).     We must accept the Board of Review's findings

if they are supported by sufficient credible evidence.        Brady, 
152 N.J. at 210.

     Unemployment compensation exists "to provide some income for

the worker earning nothing because he is out of work through no

fault or act of his own."        Futterman v. Bd. of Review, 
421 N.J.

Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady,


152 N.J. at 212).

     The Board of Review determined Cassidy was ineligible for

unemployment benefits under 
N.J.S.A. 43:21-5(g) and liable to

                                    5                              A-0053-16T4
refund benefits totaling $3971 for the weeks ending January 11,

2014 through June 28, 2014, pursuant to 
N.J.S.A. 43:21-16(d).

Cassidy grossly underreported his income, claiming he earned only

$23 per week while actually earning $241.50 per week during that

period.   "
N.J.S.A. 43:21-16(d) requires the full repayment of

unemployment benefits received by an individual who, for any

reason, regardless of good faith, was not actually entitled to

those benefits."   Bannan v. Bd. of Review, 
299 N.J. Super. 671,

674 (App. Div. 1997) (citing Fischer v. Bd. of Review, 
123 N.J.

Super. 263, 266 (App. Div. 1973) (holding that claimant was

required to refund erroneously paid unemployment benefits even

when applied for in good faith)).

     We are satisfied from our review of the record that the

undisputed facts support the Board of Review's determination that

Cassidy was not entitled to the benefits totaling $3971 he received

for the weeks ending January 11, 2014, through June 28, 2014.      He

concedes he received those benefits improperly and is responsible

for repaying that amount.   Accordingly, the decision of the Board

of Review was not arbitrary, capricious, or unreasonable and is

supported by substantial credible evidence in the record.

     Cassidy's unrelated claim against the Department of Labor,

which he raises for the first time on appeal, falls entirely

outside the scope of this appeal.    "An appellate court ordinarily

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will not consider issues that were not presented to the trial

court."   State v. Arthur, 
184 N.J. 307, 327 (2005) (citing Nieder

v. Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973)); accord Johnson

v. Roselle EZ Quick LLC, 
226 N.J. 370, 396 (2016) (declining to

address an issue not raised before the trial court that was not

an issue of sufficient public concern).   We decline to consider a

claim not raised before the Board of Review that presents issues

which are not germane to this appeal.

     The remaining contentions raised by Cassidy lack sufficient

merit to warrant discussion in a written opinion.        R. 2:11-

3(e)(1)(D) and (E).

     Affirmed.




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