JOHN M. HAMMER VS. HAIR SYSTEMS INC.(L-1464-03, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1975-14T2
HENRY J. KOCH,
Claimant-Appellant,
v.
BOARD OF REVIEW, NEW JERSEY
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT, and
ENTEL SYSTEMS, INC.,
Respondents-Respondents.
_______________________________
Argued March 13, 2017 – Decided April 25, 2017
Before Judges Nugent and Currier.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
336, 396.
Alan H. Schorr argued the cause for appellant
(Schorr & Associates, P.C., attorneys; Mr.
Schorr and Arykah A. Trabosh, on the briefs.
Alan C. Stephens, 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; Mr.
Stephens, on the brief).
Respondent Entel Systems has not filed a
brief.
PER CURIAM
Claimant Henry J. Koch appeals from the December 12, 2014 and
December 24, 2015 decisions of the Board of Review (Board) finding
him ineligible for unemployment benefits pursuant to N.J.S.A.
43:21-5(a), and liable for a refund under N.J.S.A. 43:21-16(d).
After a review of the contentions advanced on appeal in light of
the record before us and the applicable principles of law, we
reverse.
Claimant was employed by Entel Systems, Inc. On March 11,
2010, he wrote an email to his employer stating: "Today [my
supervisor] Told Me That there is No Work For Me Today And I Should
Go Home. I will be fil[]ing Unemployment Insurance[.] It was
nice Working with Entel." In his claim submitted for unemployment
benefits, claimant indicated that his unemployment was due to a
lack of work. The Division of Unemployment and Disability
Insurance (Division) approved his application and paid claimant
benefits from March 20, 2010 through March 12, 2011.
In March 2010, when the Division advised claimant that he was
qualified for benefits, it simultaneously sent a notice to Entel
entitled "Notice to Employer of Monetary Determination and Request
for Separation Information" (form BC-3E). The "Request for
Separation Information" section requested the employer to return
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the form if the claimant was separated for a reason other than
lack of work. It advised the employer that if the information was
not supplied within ten calendar days after the mailing date of
the determination, the benefit payments and charges to the
employer's account would be processed based on the available
information.
In May 2011, having received information from Entel that
claimant had misrepresented his reasons for unemployment and that
he had quit his job, the Deputy Director (Deputy) of the Division
issued a determination that claimant was disqualified for benefits
because he left work voluntarily without good cause, pursuant to
N.J.S.A. 43:21-5(a). As a result of the disqualification, the
Division Director (Director) demanded a refund of the received
benefits.
Claimant appealed the disqualification and refund
determinations, arguing that he had refused to perform the assigned
work because of an unsafe condition and that he was advised to "go
home because no other work was available." After several
telephonic hearings and appeals to the Appeal Tribunal and Board,
the Board determined in August 2012 that claimant was disqualified
to receive benefits because he left work voluntarily without good
cause attributable to the work, and was therefore liable for a
refund.
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Following an appeal to this court, we found "ample support
in the record" for the Board's ruling that claimant had failed to
demonstrate an unsafe workplace and instead had resigned from his
job. Koch v. Bd. of Review, No. A-0480-12 (App. Div. July 28,
2014) (slip op. at 14). As a result, we affirmed the Board's
decision that claimant was disqualified from receiving
unemployment benefits. Ibid. We questioned, however, whether
Entel's appeal from the Division's initial decision of eligibility
in March 2010 was timely, stating:
There is no document [from Entel] appealing
the [Division's] March 2010 decision in the
record, nor is there any explanation as to why
a timely appeal would have taken so long to
schedule or any other basis for the deputy
director's notice. We do not find the State's
suggestion that Koch had the duty to produce
the appeal document to be at all persuasive.
[Id. at 12.]
Consequently, we remanded the case to the Division for a
determination of "whether Entel's appeal of the initial
eligibility decision was timely, and if it was not, whether Entel's
appeal should have been dismissed and Koch's benefits reinstated."
Id. at 14.
After a hearing in October 2014, at which claimant and the
Division's representative appeared, the Board issued a decision
on December 12, 2014, acknowledging that it was not aware there
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was a dispute concerning claimant's proffered reason for leaving
his job until March 2011. Although the Board could not produce a
hard copy of Entel's correspondence,1 it advised that a March 22,
2011 entry in the computer record of claimant's unemployment claim
documented the employer's assertion that claimant had voluntarily
quit his job.
The Board conjectured that there were two reasons why the
Division did not learn of the "separation issue" until March 2011.
The first cause of this situation was
that the claimant did not provide the Agency
with correct information concerning why he was
out of work. He informed the Division that
his separation was due to lack of work. At
our hearing, claimant's attorney insisted that
this was indeed the reason for his client's
separation. We respond that the findings of
the court indicate that the claimant lost his
job because he refused to perform an assigned
job, that at the time the claimant stopped
working the employer sent him a communication
that they considered that he had quit his job,
and that his supervisor never told him he was
terminated. We conclude that had the claimant
been more forthcoming given the circumstances
surrounding his separation, the Division would
have promptly interviewed him and there would
have been no one-year wait before a non-
monetary determination was issued.
The second cause of the delay in
resolving the separation issue was the massive
increase on the Agency's workload caused by
the Great Recession. The testimony from the
Agency's representative convinces us that the
1 The Board contended the form was either destroyed or lost by the
Division.
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employer reported promptly after its receipt
of the monetary determination that the
claimant had quit his job. Nonetheless, the
Agency apparently was unable to deal with this
matter until March[] 2011.
The Board expressed its belief that the employer had promptly
returned the pertinent form disputing claimant's reason for his
separation from work. It stated:
The representative of the Division testified
that it was her belief that the delay in
resolving the claimant's separation issues was
caused either by the Agency's difficulty in
dealing with its massive increase in work, or
the employer's delay in submitting the BC-3E.
We are satisfied that the cause was the former
because we cannot think of any reason why the
employer would submit the form a year after
the claim was filed.
Accordingly, on December 12, 2014, the Board held that Entel
had filed a timely appeal from claimant's benefit determination,
and he remained disqualified for benefits. Pursuant to our remand
instructions, the Board referred the case to the Director to
determine whether claimant was entitled to a refund waiver. On
December 24, 2015, the Board affirmed the Director's decision
finding that claimant was not entitled to a waiver.
On appeal, claimant argues that there was no evidence
presented to the Board to support its conclusion that the
employer's appeal of his eligibility for benefits was timely.
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Our review of administrative agency decisions is limited. A
reviewing court will not disturb an agency's action unless it was
clearly "arbitrary, capricious, or unreasonable." Brady v. Bd.
of Review, 152 N.J. 197, 210 (1997) (citation omitted). Likewise,
judicial review of an agency's factual determination is highly
deferential. In re Bridgewater, 95 N.J. 235, 245 (1984). "If
substantial credible evidence supports an agency's conclusion, a
court may not substitute its own judgment for the agency's even
though the court might have reached a different result." Greenwood
v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations
omitted).
After concluding that the Board's determination that claimant
was disqualified to receive unemployment benefits was supported
by the evidence in the record, we remanded for the Board to
determine whether there was a timely appeal filed by the employer
of the March 2010 benefits determination.
The Board conducted a hearing with the claimant and Division
representative present. When asked how the computer entry from
form BC-3E did not come into existence until over a year after the
claim was filed, the Division representative responded:
I can only speculate . . . that either the
form came in late or because at this point in
time we were dealing with numerous
correspondence. We had back logs and it may
have been in that back log pile. And it might
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have been entered [into the computer system]
when it was discovered.
. . . .
I cannot be sure as I do not have the original
form with the date stamp on it so I do not
know.
The employer, being absent from the hearing, but apparently being
notified of it, provided no proofs as to when it filed an appeal
of the benefits determination.
In its decision concluding that there was a timely appeal,
the Board stated:
[There was a] massive increase on the Agency's
workload caused by the Great Recession. The
testimony from the Agency's representative
convinces us that the employer reported
promptly after its receipt of the monetary
determination that the claimant had quit his
job. Nonetheless, the Agency apparently was
unable to deal with this matter until March[]
2011.
The Board continued,
[W]e believe the employer did promptly return
the form. The representative of the Division
testified that it was her belief that the
delay in resolving the claimant's separation
issues was caused either by the Agency's
difficulty in dealing with its massive
increase in work, or the employer's delay in
submitting the BC-3E. We are satisfied that
the cause was the former because we cannot
think of any reason why the employer would
submit the form a year after the claim was
filed.
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The Board's conclusions were not based on substantial
credible evidence in the record. The agency's representative
speculated as to what might have occurred with the form. She did
not testify that there was a massive increase in work or refer to
a "great recession." The Board drew its own conclusion, stating
that it was the logical conclusion. This is not a decision that
is supported by the evidence in the record. There was no evidence
presented to support a timely appeal as there was no record of the
employer filing the appeal and the employer chose not to
participate in the Board's hearing.
N.J.S.A. 43:21-6(b)(1) sets forth the procedure for appeals
of an agency determination of unemployment benefits. It states
that unless the claimant or any interested party, within seven
calendar days after delivery of notification of an initial
determination or within 10 calendar days after such notification
was mailed to his or their last-known address and addresses, files
an appeal from such decision, such decision shall be final and
benefits shall be paid or denied in accordance therewith.
New Jersey courts have consistently held that the limitation
period proscribed by this statute is of jurisdictional import and
"hence not generally subject to either equitable tolling or
enlargement under the so-called discovery rule." Hopkins v. Bd.
of Review, 249 N.J. Super. 84, 88-89 (App. Div. 1991); see also
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Lowden v. Bd. of Review, 78 N.J. Super. 467, 470 (App. Div. 1963)
(explaining that the Unemployment Compensation Law is social
legislation "which should be construed by the courts to give effect
to its beneficent purposes[]" but does not authorize courts to
extend time limitations intended by the Legislature to be fixed
as an absolute deadline in the statute).
We find the Board's decision was arbitrary and not supported
by the credible evidence. We therefore reverse the Board's
decision for the lack of proofs presented to support its conclusion
that the employer filed a timely appeal as required under the
statute. Accordingly, we also reverse the determination that
claimant is liable for a refund.
Reversed.
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