LYDIA WAGNER VS. BOARD OF REVIEWÂ Â (BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCEDEVELOPMENT) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5689-14T1
LYDIA WAGNER,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT, and UNITED STATES
POSTAL SERVICE,
Respondents.
___________________________________
Argued October 30, 2017 – Decided November 28, 2017
Before Judges Whipple and Rose.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
442,214.
Lydia Wagner, appellant, argued the cause pro
se.
Christopher Weber, Deputy Attorney General,
argued the cause for respondent Board of
Review (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Adam
C. Verone, Deputy Attorney General, on the
brief).
Respondent United States Postal Service has
not filed a brief.
PER CURIAM
Claimant Lydia Wagner appeals from the June 15, 2015 final
decision of the Board of Review denying her request, pursuant to
N.J.A.C. 12:17-14.2, for a waiver of recovery of unemployment
benefits she erroneously received when she was ineligible. We
affirm.
The record reflects Wagner was employed as a clerk with the
United States Postal Service from July 7, 1984 until May 31, 2009,
when she accepted an early retirement package. On June 9, 2009,
Wagner filed for unemployment benefits. Wagner received
unemployment benefits from June 13, 2009 through May 29, 2010. In
December 2011, the Deputy to the Director of the Division of
Unemployment Insurance determined Wagner was ineligible for
benefits, having "left work voluntarily without good cause
attributable to such work" pursuant to N.J.S.A. 43:21-5(a).
Wagner administratively appealed the Deputy's determination
to the Appeal Tribunal. Following a hearing in May 2012, at which
Wagner participated with counsel, the Tribunal affirmed the
Deputy's determination. Wagner administratively appealed the
Tribunal's determination to the Board of Review. In October 2012,
the Board issued a decision upholding the Tribunal's ruling
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disqualifying Wagner for benefits and finding she was responsible
for refunding the benefits received in the amount of $23,970.
Wagner did not appeal the Board's decision to this court.1 See R.
2:4-1(b) (requiring appeals from final agency decisions to be
filed "within 45 days from the date of service of the decision or
notice of the action taken.").
The Board referred Wagner's separate request for a waiver of
the refund to the Director of the Division of Unemployment
Insurance. In September 2013, the Director denied Wagner's request
for a waiver. Wagner administratively appealed the Director's
denial to the Appeal Tribunal. Wagner participated in the hearing
with counsel. In January 2014, the Tribunal affirmed the
Director's determination.
Wagner administratively appealed and the Board then remanded
to the Tribunal for an explanation as to why the Bureau of Benefit
Payment Control denied Wagner's request for a waiver. Wagner
participated in this hearing with counsel. In sum, the Bureau's
investigator testified that Wagner's financial disclosure did not
demonstrate a hardship, supporting the Bureau's determination that
1
Wagner's chief argument on appeal is that she left employment
with good cause because the Postal Service was downsizing and it
offered her early retirement. Because Wagner did not appeal the
Board's decision disqualifying her benefits, that issue is not
properly before us. Consequently, we do not address the portions
of Wagner's brief contesting the merits.
3 A-5689-14T1
Wagner had sufficient income to meet her needs and refund the
benefits. After the hearing, the Tribunal denied Wagner's request
for a waiver, finding "the amount overpaid is not patently contrary
to principles of equity, in accordance with N.J.A.C. 12:17-14.2."
Wagner administratively appealed the Tribunal's decision on
her waiver request. In a final decision dated June 15, 2015, the
Board affirmed the Tribunal's determination. This appeal
followed.
Our scope of review of an agency decision is limited. In re
Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State
Prison, 81 N.J. 571, 579 (1980)). In challenging an agency
conclusion, the claimant carries a substantial burden of
persuasion, and the determination of the administrative agency
carries a presumption of correctness. Gloucester Cty. Welfare Bd.
v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983); McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.
2002). We also accord substantial deference to the agency's
interpretation of a statute it is charged with enforcing. Bd. of
Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31
(1996).
Further, "[w]e are obliged to defer to the Board [of Review]
when its factual findings are based on sufficient credible evidence
in the record." Lourdes Med. Ctr. of Burlington Cty. v. Bd. of
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Review, 197 N.J. 339, 367 (2009) (internal quotation marks and
citations omitted). We overturn an agency determination only if
it is arbitrary, capricious, unreasonable, unsupported by
substantial credible evidence as a whole, or inconsistent with the
enabling statute or legislative policy. Brady v. Bd. of Review,
152 N.J. 197, 210-11 (1997).
Once a person has been disqualified from receiving
unemployment benefits, the unemployment compensation statute
generally requires repayment of any benefits received. N.J.S.A.
43:21-16(d)(1). Recoupment of "unemployment benefits received by
an individual who, for any reason, regardless of good faith, was
not actually entitled to those benefits[,]" protects the public
and maintains a fund for those adversely affected by unemployment,
rather than those who voluntarily choose to leave the workforce.
Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).
"The public interest clearly is not served . . . by the failure
to recoup benefits erroneously paid to an unentitled recipient,
however blameless he or she may have been." Ibid.Nonetheless, the Director may authorize a repayment waiver
or payment plan if the claimant is deceased, disabled or where
"the recovery of the overpayment would be 'patently contrary to
the principles of equity.'" N.J.A.C. 12:17-14.2(d). In order to
determine whether recovery would be "patently contrary to the
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principles of equity," the Director must determine "whether the
terms of a reasonable repayment schedule would result in economic
hardship to the claimant." Ibid.Here, the Board duly considered claimant's waiver request and
determined she was not entitled to such relief. Wagner's claim
of economic hardship is not adequately supported by her financial
disclosure to the Bureau. Nor has Wagner demonstrated that
repayment would be "patently contrary" to principles of equity.
We are satisfied, therefore, that the Board's determination was
fully supported by the facts and applicable law.
We recognize Wagner did not act in bad faith in receiving the
erroneously paid benefits, but she is still required to repay
them. N.J.S.A. 43:21-16(d)(1). She has failed to satisfy an
economic hardship, or any other, ground for a waiver pursuant to
N.J.A.C. 12:17-14.2(d). We are compelled to affirm the agency
decision unless it is arbitrary, capricious or unreasonable. Barry
v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). We discern no
reason to interfere with the Board's determination. We do not,
however, foreclose the agency from adopting a repayment plan to
enable Wagner to repay the balance due in reasonable installments.
Affirmed.
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