Opinion
DOCKET NO. A-0573-13T3
03-12-2015
AMANDA SHEPANSKI, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and COYLE C. CONNOLLY, D.O., P.A., Respondents.
Michael C. Paxton, LLC, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Coyle C. Connolly, D.O., P.A., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Board of Review, Department of Labor, Docket No. 413,112. Michael C. Paxton, LLC, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Coyle C. Connolly, D.O., P.A., has not filed a brief. PER CURIAM
Appellant appeals from an August 16, 2013 final decision of the Board of Review (Board), concluding that she was disqualified for unemployment benefits because she had been discharged for severe misconduct connected to her work. We affirm.
Appellant worked as a receptionist in a dermatologist's office for seven months, from May 8, 2012 to December 18, 2012. Appellant's duties included scheduling appointments for patients on the office computer. When a patient arrived at the office, appellant would "check in" the patient on the computer, and similarly "check[] out" the patient at the completion of the visit. The office's software system would then generate a bill for the patient for the visit. However, if appellant marked an appointment as "cancelled" in the computer, the patient would not be billed.
On November 21, 2012, appellant's boyfriend saw a doctor for treatment. The office manager testified that the boyfriend's appointment was later marked "cancelled" on the computer system, which meant that "no billing went out for that patient." On December 12, 2012, appellant's boyfriend's brother came to the office for treatment. The brother's appointment was also marked "cancelled" in the system after he was seen by the dermatologist. As a result, the brother was also not charged for the visit.
By the time of the Appeal Tribunal hearing, appellant had married her boyfriend.
When the office manager discovered these discrepancies, she confronted appellant. Appellant claimed that the brother's mother paid for his visit, but the office had no record of any such payment. Appellant then asked the manager "if there was something [she] could do to fix this[.]" The manager terminated appellant because she had falsified the records in order to enable her friends to receive free medical care.
At the Appeal Tribunal hearing, appellant denied cancelling the appointments. She alleged the appointments may have been improperly cancelled by a second receptionist, who joined the office shortly before appellant's termination.
The Appeal Tribunal found that appellant's testimony was not credible, stating:
[Appellant's] contention that she did not cancel the appointments on 11/21/12 and 12/12/12 is rejected as not credible in light of [appellant's] own admission that she told the [office] manager "Is there anything I can do to fix this?" after the [office] manager confronted [appellant] about [cancelling] the appointments. [Appellant's] admission suggests . . . that the claimant knew that she did something wrong and wanted to make amends. The Appeal Tribunal is satisfied that [appellant] cancelled the appointments on 11/21/12 and 12/12/12.The Appeal Tribunal found that appellant's actions constituted "gross misconduct" because the alteration of medical records relating to medical care is a fourth-degree offense under N.J.S.A. 2C:21-4.1.
Appellant appealed to the Board. Based upon its review of the record, the Board found that, although appellant falsified office records by cancelling the two appointments in order to enable her friends to receive free health services, she did not alter any of the entries on their actual medical records. Therefore, the Board concluded that N.J.S.A. 2C:21.4-1 "does not apply and [appellant] was not discharged for gross misconduct connected to the work." However, the Board found that appellant's "actions in falsifying the employer's billing records do rise to the level required for a disqualification for severe misconduct connected to the work." Therefore, the Board disqualified appellant for benefits pursuant to N.J.S.A. 43:21-5(b). This appeal followed.
On appeal, appellant argues that the Board's decision "was not supported by facts and, therefore[,] is arbitrary and capricious and should be reversed." We disagree.
Our review of an administrative agency decision is limited. 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 [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.
Until 2010, N.J.S.A. 43:21-5(b) identified two types of misconduct that prevented full receipt of unemployment benefits. "[G]ross misconduct" is "an act punishable as a crime" and results in a complete disqualification for benefits. Ibid. "[M]isconduct" is found where an employee's act is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." N.J.A.C. 12:17-10.2(a). It results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b).
In 2010, an intermediate type of misconduct, "severe misconduct," was added to N.J.S.A. 43:21-5(b). L. 2010, c. 37, § 2, eff. July 1, 2010. An employee who has been discharged for severe misconduct is disqualified for unemployment benefits until he or she has been reemployed for at least four weeks and has earned at least six times the employee's weekly unemployment benefit rate. Ibid. The statute does not define "severe misconduct," but does provide examples, such as "repeated violations of an employer's rule or policy, . . . falsification of records," and other "behavior [which] is malicious and deliberate but is not considered gross misconduct as defined in" the statute. Ibid.
The Board determined that appellant was disqualified for benefits because of severe misconduct based upon her falsification of her friends' appointment and billing records. The Appeal Tribunal considered appellant's claim that another receptionist may have been responsible for permitting appellant's friends to receive free medical care, but found that appellant's testimony was simply not credible. This finding was properly adopted by the Board, and its decision to disqualify appellant was therefore supported by substantial credible evidence, and was neither arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION