Opinion
DOCKET NO. A-4658-11T4
06-17-2014
GARY J. SABO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND IHC RISK SOLUTIONS, Respondents.
Gary J. Sabo, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Alan C. Stephens, Deputy Attorney General, on the brief). Respondent IHC Risk Solutions has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Board of Review, Department of Labor, Docket No. 342,635.
Gary J. Sabo, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Alan C. Stephens, Deputy Attorney General, on the brief).
Respondent IHC Risk Solutions has not filed a brief. PER CURIAM
Claimant Gary J. Sabo appeals from the decision of the Board of Review (Board) of the New Jersey Department of Labor and Workforce Development (Department). The Board upheld the denial of unemployment benefits for a six-week period because Sabo failed to claim benefits in a timely manner. We affirm.
I.
Sabo worked for IHC Risk Solutions from 2000 to May 2, 2011. On May 8, 2011, Sabo filed an application for unemployment benefits with the Department's Division of Unemployment and Disability Insurance (Division). On May 13, the Unemployment Insurance Office (Unemployment Office) mailed Sabo an Appointment Notice (Notice), which scheduled him for a "Reemployment Services Orientation" (reemployment meeting) on June 20, 2011. The Notice also stated:
You may claim your unemployment benefits on the Internet at www.njuifile.net or by telephone . . . . You may claim your benefits for the first time on 05/25/2011. After that you will claim your benefits every two weeks starting 06/06/2011.The Notice then explained that "you will claim your benefits" on Monday or Tuesday depending on the claimant's Social Security Number, and that "[i]f you miss your assigned date, you may claim your benefits on the Wednesday, Thursday or Friday following your assigned date."
Sabo did not claim his benefits as scheduled. On June 20, he reported to the Unemployment Office for the reemployment meeting. Later that day, Sabo called the Unemployment Office to claim benefits, nearly four weeks after the May 25 date given in the Notice.
The Division's Deputy determined that there was no good cause for Sabo's failure to report. As a result, the Deputy ruled Sabo was ineligible for benefits for the six-week period from May 8 to June 18, 2011.
The Deputy mistakenly stated that Sabo "did not report as scheduled on 5/08/11." However, all subsequent proceedings used the correct date of May 25, 2011.
Sabo appealed to the Department's Appeal Tribunal (Tribunal), which held a telephone hearing. The Tribunal found that Sabo was ineligible for benefits for the six-week period because he did not report as scheduled on May 25 and thereafter until he appeared on June 20 for his reemployment meeting. He then appealed to the Board, which affirmed the Tribunal on March 23, 2012. Sabo appeals to this court.
II.
We must hew to our limited standard of review. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009).
Sabo candidly states that he "made a mistake in thinking [he] could not claim benefit payments until after" the reemployment meeting. He points out, however, that he claimed benefits immediately after the reemployment meeting. He argues that the benefits are rightfully due to him because he was unemployed during the six-week period.
Under the unemployment compensation law, however, a claimant's eligibility for benefits does not entitle him to benefits unless he complies with the necessary procedures. Under N.J.S.A. 43:21-4,
[a]n unemployed individual shall be eligible to receive benefits with respect to any week eligible only if: (a) The individual has filed a claim at an unemployment insurance claims office and thereafter continues to report at an employment service office or unemployment insurance claims office, as directed by the division in accordance with such regulations as the division may prescribe[.]
Sabo filed his initial application for benefits using the Internet pursuant to N.J.A.C. 12:17-4.2(a). After the initial application, "[a] claimant shall be assigned a reporting method, in person, by mail, telephone, via an Internet application or as the Division may otherwise prescribe, and shall be required to report as directed to claim completed weeks of unemployment benefits." N.J.A.C. 12:17-4.3(a). Here, the Notice informed Sabo that he could claim his benefits, by telephone or using the Internet, beginning on May 25, 2011.
The Board argues that when Sabo made his initial application on the Internet, online instructions would have advised him how to report and claim his weekly benefits; that he failed to follow those instructions; and that his method for reporting is thus unknown. We give no weight to those arguments because the Board has not provided any factual support, such as a copy of the online instructions Sabo would have seen.
Under the Division's regulations, "[i]ndividuals shall report as directed by the Division as to date, time, and place in person, by telephone, by mail, via an Internet application or as the Division may otherwise prescribe." N.J.A.C. 12:17-4.1(a). "An individual who fails to report as directed will be ineligible for benefits unless, pursuant to a fact-finding hearing, it is determined that there is 'good cause' for failing to comply." N.J.A.C. 12:17-4.1(b); see N.J.A.C. 12:17-4.3(g). "'[G]ood cause' means any situation which was substantial and prevented the claimant from reporting as required by the Division." N.J.A.C. 12:17-4.1(b).
At the hearing before the Tribunal, Sabo testified that he did not claim benefits on May 25 because he had been continuously employed since 1984, was "not familiar with this whole [unemployment benefit] process," and "was under the impression you had to go through an interview first at the unemployment office." The Tribunal found his testimony was "self-serving." We must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Makutoff v. Bd. of Review & Soc. Gen., 427 N.J. Super. 218, 223 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 656 (1999)).
In any event, Sabo's misimpression does not constitute good cause. Good cause for failing to file a timely claim and report may be shown if the Division "misinformed" a claimant and his failure to report "was not due to [his] neglect." Meaney v. Bd. of Review, 151 N.J. Super. 295, 300 (App. Div. 1997). However, Sabo does not claim that his misimpression regarding the reporting requirements was due to misinformation from Division personnel. Nor does Sabo claim he was misled by the phrasing of the Notice, which states that a claimant "may" or "will" claim unemployment benefits as specified, but does not clarify that a claimant must claim the benefits as specified or the benefits will be lost.
In his submissions to the Division, Sabo stated that he gained this misimpression after talking with friends and co-workers.
The Deputy found that Sabo's "reason for failing to report during a prior week does not constitute good cause." The Tribunal and the Board affirmed. According "substantial deference" to the Board's interpretation of its own regulation, we cannot say that decision was "arbitrary, capricious, or unreasonable." See Apogee Trucking, L.L.C. v. Bd. of Review, Dept. of Labor, 429 N.J. Super. 552, 554 (App. Div. 2013).
Sabo notes his employer is not contesting his right to receive unemployment benefits. The employer's inaction or acquiescence does not affect the ability of the Board to enforce its own regulations.
Moreover, failure to report impedes the Board's ability to ascertain whether a claimant remains unemployed, "is able to work, and is available for work, and has demonstrated to be actively seeking work." N.J.S.A. 43:21-4(c)(1). "Although the Act is to be liberally construed in favor of claimants to effectuate its remedial purposes," it is also the Board's important duty "'to preserve the [unemployment insurance trust] fund against claims by those not intended to share in its benefits.'" Brady, supra, 152 N.J. at 212 (citations omitted).
We note that, currently on the website listed in the Notice, clicking "Claim Your Weekly Benefits" requires claimants first to certify that they understand that collecting unemployment insurance benefits while working is a crime. https:// www17.state.nj.us/DOL_W247/DOL_W247/Cont.jsp (last visited June 10, 2014).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION