Opinion
DOCKET NO. A-0569-12T3
01-28-2014
WAYNE T. BYRD, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and JOHNSON FARMS, Respondents.
Rebecca J. Bertram argued the cause for appellant Wayne T. Byrd (Bertram & Haag, L.L.C., attorneys; Wayne T. Byrd, on the pro se briefs). Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Mr. Kurek, on the brief). Respondent Johnson Farms has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from the Board of Review, Department of Labor, Docket No. 358,526.
Rebecca J. Bertram argued the cause for appellant Wayne T. Byrd (Bertram & Haag, L.L.C., attorneys; Wayne T. Byrd, on the pro se briefs).
Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).
Respondent Johnson Farms has not filed a brief. PER CURIAM
Wayne Byrd appeals from an August 30, 2012 determination of the Department of Labor's Board of Review, which affirmed a decision by the Appeal Tribunal for the Department's Division of Unemployment and Disability Insurance that, in turn, affirmed a determination of the Deputy Director of the Division finding Byrd liable for a refund of $10,290 in overpaid unemployment benefits. Byrd received those benefits through no fault of his own, as the result of an admitted agency error. He argues that he is entitled to a waiver of repayment, given the hardship that repayment would cause him. Because neither the Appeal Tribunal nor the Board addressed the issue of Byrd's entitlement to a waiver, we remand to the Director so that he can properly consider Byrd's application.
Byrd is a seasonal truck driver for respondent Johnson Farms. He is a single father of five children, two of whom depend solely on his support. Byrd has been treated for ongoing heart problems and has no medical insurance. He has been unemployed for several periods of time since 2009 and has filed and exhausted claims for state unemployment benefits. After Byrd exhausted one of these claims in March 2010, the Division enrolled him in a federal program that provides emergency relief for individuals who have depleted their state unemployment benefits. Byrd never requested to be enrolled in this program and the Division concedes he was not eligible for it. Byrd received no money from this improper enrollment until 2011, when, after exhausting another claim, the Division mistakenly paid him the federal benefits it thought he was due dating back to March 2010 when he was first incorrectly enrolled. Due to the Division's mistake, and through no fault of his own, Byrd received $10,290 in overpayment.
At the hearing, Byrd testified that he was unemployed at all times for which he made claims for benefits and never made any misrepresentations of fact in this regard. The Appeals Examiner agreed that he "did nothing at all wrong." Accordingly, in his written decision, the Appeals Examiner stated that because "this was clearly an agency error, any offset amount for future benefits" used to pay down Byrd's refund debt "shall be limited to 50 percent of the claimant's weekly benefit rate for each week of benefits subsequently claimed, pursuant to N.J.A.C. 12:17-14.3."
Byrd testified that it would be an extreme hardship for him to refund the overpayment to the Division. Byrd's attorney argued that, pursuant to N.J.A.C. 12:17-14.2, Byrd was entitled to have the refund waived because he had not misrepresented or withheld any information in order to receive benefits and could not afford to repay the money he received in error. The Appeals Examiner did not acknowledge or respond to this argument and only mentioned the possibility of a waiver indirectly by stating in his written decision that Byrd was liable for the refund "unless the Director directs otherwise in accordance with N.J.A.C. 12:17-14.2." The Board's decision states that "the allegations of the appellant have been carefully examined[,]" but makes no mention whatsoever of Byrd's request for a waiver.
On appeal, Byrd contends that he is entitled to a waiver of his refund obligation. In pertinent part, N.J.A.C. 12:17-14.2 provides the following:
(a) Upon request of the claimant or the claimant's representative, the Director may grant the claimant a full waiver of recovery of an overpayment of benefits only after the Director has determined that the claimant has not misrepresented or withheld any material fact in obtaining benefits and only under the following circumstances:Because neither the Appeal Tribunal nor the Board addressed whether Byrd was entitled to a waiver pursuant to N.J.A.C. 12:17-14.2, we remand this matter to the Director for consideration with an enhanced record if necessary.
. . . .
3. Where the recovery of the overpayment, as determined by the Director with the Controller's concurrence, would be patently contrary to the principles of equity.
. . . .
(d) For purposes of determining under (a)3 above whether the recovery of the overpayment would be "patently contrary to the principles of equity," the Director and
Controller shall consider whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant.
The Division's regulations do not explain how this request should be made.
This court's review of administrative agency decisions is limited in scope. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Due regard is given to the agency's expertise, Ford v. Bd. of Review, 287 N.J. Super. 281, 283 (App. Div. 1996), and the agency's determination will not be disturbed absent a finding that it was "arbitrary, capricious, or unreasonable." Brady, supra, 152 N.J. at 210. The agency's decision must be adequately explained, "because courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review." Bd. of Educ. of E. Windsor Reg. Sch. Dist. v. State Bd. of Educ, 172 N.J. Super. 547, 552 (App. Div. 1980).
"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).
The regulations do permit the Director to waive repayment of over-recovery of benefits when the recipient did not conceal any material facts and reimbursement would be inequitable. N.J.A.C. 12:17-14.2(a),(d). The State cites no authority to support its suggestion that Byrd's request for a waiver before the Appeal Tribunal was insufficient.
Contrary to the State's suggestion, while the Division's regulations provide that the Director may grant a waiver "[u]pon request of the claimant or the claimant's representative," they are silent as to the form and the forum in which that request must be made. The Division's webpage entitled "Overpayment UI/DI Benefits" explains how claimants should appeal if they disagree with a determination that they have been overpaid. Overpayment UI/DI Benefits, Dep't of Labor and Workforce Dev., http://lwd.dol.state.nj.us/labor/ui/content/overpayment.html (last visited Jan. 14, 2014). Byrd complied with this direction. The Division's webpage entitled "Forms & Publications for Claimants and Employers" contains no form for requesting a waiver. It does have available for download a fifty-two page booklet entitled "Unemployment Insurance: Your Rights and Responsibilities," but the booklet makes no mention of refund waivers or the process for requesting one. Forms & Publications for Claimants and Employers, Dep't of Labor and Workforce Dev., http://lwd.dol.state.nj.us/labor/ui/content/forms_index.html (last visited Jan. 14, 2014).
"Failure to address critical issues, or to analyze the evidence in light of those issues, renders the agency's decision arbitrary and capricious and is grounds for reversal." Green v. State Health Benefits Comm'n, 373 N.J. Super. 408, 415 (2004). In deciding Byrd's case, the Board failed to address a fundamental issue raised before it: whether Byrd was entitled to a waiver of recovery under N.J.A.C. 12:17-14.2(a).
In Mullarney v. Bd. of Review, 343 N.J. Super. 401 (2001), we remanded the question of a refund waiver to the Division where the issue had been raised for the first time on appeal, stating, "[W]e believe the question of a waiver of recovery should be decided in the first instance, by the Division, applying its expertise. In addition, we prefer to have the benefit of a full record, to be developed on remand for any further review." Id. at 410. Similarly, a remand here will allow the Division to fulfill its duty pursuant to N.J.A.C. 12:17-14.2 to determine whether it would be "patently contrary to the principles of equity," to require repayment by considering "whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant."
We remand to the Director to consider Byrd's request for a waiver as of the time the request was made. At oral argument, Byrd stated that he has been making payments by way of deductions from the unemployment compensation he was entitled to receive since this appeal was filed. The fact that he has made this repayment should not enter into the Director's assessment. We also note that if a waiver is granted, the Division should reimburse Byrd for any repayment he has made while this appeal was pending.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION