Opinion
DOCKET NO. A-0702-10T1
02-28-2012
MICHAEL C. FOLK, Appellant, v. BOARD OF REVIEW and EXPRESSJET AIRLINES, Respondents.
Michael C. Folk, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
On appeal from the Board of Review,
Department of Labor, Docket No. 258,466.
Michael C. Folk, appellant pro se.
Jeffrey S. Chiesa, Attorney General,
attorney for respondent Board of Review
(Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Alan C. Stephens,
Deputy Attorney General, on the brief).
Respondent ExpressJet Airlines has not
filed a brief.
PER CURIAM
Michael C. Folk appeals from a final determination of the Department of Labor's Board of Review (Board) requiring him to refund $14,000 for unemployment compensation benefits paid from March 28 through September 12, 2009. "On the basis of the record" developed before the Appeal Tribunal, the Board affirmed the Appeal Tribunal's rejection of Folk's objection to the demand. We reverse and remand for further proceedings, primarily because the Appeal Tribunal did not address the issue Folk raised — his obligation to repay $14,000.
For the first time on this appeal, Folk raises an additional challenge to the denial of extended benefits that he did not raise below. Consistent with our general practice, we decline to address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Folk was determined to be eligible for a $560 monthly unemployment benefit for twenty-six weeks commencing on September 21, 2008 and expiring on March 21, 2009. Pursuant to the Emergency Unemployment Compensation Act, P.L. 110-252 (June 30, 2008) (printed as a note to 26 U.S.C.S. § 3304), the $560 benefit was extended until September 12, 2009.
In October 2009, the Division discovered that Folk was not entitled to the emergency benefit because he had a valid combined wage claim (CWC) for non-emergency benefits from Colorado based on his earnings from employment in that state and Virginia. See P.L. 110-252 § 4001(b)(2) (printed as a note to 26 U.S.C.S. § 3304) (discussing ineligibility for emergency benefits when regular benefits are available in another state). Consequently, the Division directed Folk to file a claim for non-emergency unemployment benefits in Colorado, and the Director demanded a $14,000 refund on October 18, 2009.
Folk filed a challenge with the Appeal Tribunal. He requested that his obligation to repay be conditioned on his receipt of any "back-dated" benefits from Colorado.
During the telephonic hearing conducted by an examiner for the Appeal Tribunal, Folk reiterated that the "major issue" was his obligation to pay the refund. The examiner told Folk, several times, that she would have him address that matter with the Director in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, which delineate the Director's authority to consider the equities where the claimant has no role in the error that led to overpayment. Apart from noting the Director's authority to waive repayment, the Appeal Tribunal's decision of December 30, 2009 does not address Folk's request to condition his obligation to refund the benefits on his receipt of benefits from Colorado for the same period.
Although the Appeal Tribunal determined that Folk was paid $14,000 in emergency benefits to which he was not entitled, the basis for that conclusion is not clear in the record. The Appeal Tribunal stated that the emergency benefits were paid for weeks ending March 28 through September 12, 2009, and that for "the same period" the claimant "would have had a valid CWC Colorado claim." But the record does not provide any support for that determination. The transcript of the telephonic hearing on December 30, 2009 discloses that the examiner based the finding on unidentified records that were available to her but not to Folk.
Contrary to Rule 2:5-4(b), those records are not referenced in the statement of items comprising the record on appeal submitted on behalf of the Board of Review, and those records are not included in the appendix submitted with the Board's brief. Accordingly, we cannot discern whether that determination is supported by the record. Folk testified that he understood the benefits paid to him by Colorado were for a period commencing after the emergency benefits paid by New Jersey expired and that he thought Colorado was refunding the benefits paid by New Jersey directly to New Jersey.
By letter to the Director dated January 4, 2010, Folk appealed the December 30, 2009 decision. Folk asked the Director to determine whether Colorado had paid New Jersey, explaining that his efforts to get an answer to that question were unsuccessful because he received a busy signal every time he dialed the telephone number provided. He also asked the Director to consider a limited waiver — making his obligation to repay contingent on his receipt of duplicative benefits from Colorado. As noted above, the Appeal Tribunal did not address waiver and the record does not establish the overpayment.
This court must defer to "an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Bailey v. Board of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). Conversely, an appellate court is obligated to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
Because there is no pertinent evidence in the record, we cannot determine whether the agency's conclusion that Folk was improperly paid benefits in the amount of $14,000 is supported by sufficient evidence. On this appeal, the agency improperly relies on the examiner's statements about the content of the unidentified records she was reviewing and factual findings stated in the Appeal Tribunal's decision. We cannot fulfill our responsibility to assess the adequacy of the evidential support for those findings by reading the decision.
In any event, a remand to the agency is necessary for an additional reason. Pursuant to N.J.S.A. 43:21-16(d)(1), the Director is required to seek repayment for benefits improperly paid. But N.J.S.A. 43:21-16(d)(1) gives the Director the authority to waive repayment in accordance with standards adopted by regulation. The Director has adopted a regulation addressing such waivers. N.J.A.C. 12:17-14.2(a)(3) provides:
(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:
. . . .
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.
Folk has raised questions of fact arguably pertinent to that standard: whether Folk received the benefits from Colorado that led New Jersey to demand repayment; and whether Colorado already repaid some or all of New Jersey's overpayment.
The Board's decision to deny Folk's appeal without addressing those issues or referring them to the Director was plainly arbitrary.
Reversed and remanded for further proceedings in conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION