June 8, 2007
ROSARIO B. CANAL, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND KIMBALL MEDICAL CENTER (A.K.A. ST. BARNABAS BEHAVIORAL), RESPONDENTS.
On appeal from a final decision of the Board of Review, Department of Labor, 67,357.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2007
Before Judges Lintner and Seltzer.
Claimant, Rosario B. Canal, appeals from an August 26, 2005, decision of the Board of Review, affirming an Appeal Tribunal finding that claimant was ineligible for temporary disability benefits from September 5, 2003, and requiring that she "refund . . . the sum of $2,514.05 received as State Plan Disability benefits for the period from 09/05/03 through 10/15/03." We affirm.
Claimant filed a claim, dated September 3, 2003, for benefits available through The Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -65. The Law is intended to provide "cash benefits to eligible individuals suffering accident or illness which is not compensable under the workmen's compensation law." N.J.S.A. 43:21-26.
Claimant's claim contained a certification that she worked full-time as an "RN (NURSE)" at St. Barnabas Behavioral Health Center and as an "FA ASSISTANT" at Ocean County College. The medical certificate attached to the petition represented that claimant was unable, as the result of "depression, anxiety," to perform her regular work from August 19, 2003 and estimated that she would be able to return to work on October 16, 2003.
Based on that certification, the Director of the Division of Temporary Disability Insurance determined claimant was eligible for temporary disability benefits and she received $2514 in benefits from September 5, 2003 through October 15, 2003.
Despite the representations made in the application, claimant was not employed on a full-time basis with either St. Barnabas or Ocean County College; rather, she held part-time employment with both. Although claimant stopped working at St. Barnabas, she continued her part-time employment with Ocean County College. Sometime around October 16, 2003, claimant visited her terminally-ill brother in Germany, returning to St. Barnabas on November 24, 2003.
At the hearing before the Appeal Tribunal, the Division explained that the original determination of eligibility was made on the assumption that, as claimant had represented, she was employed full-time and that the Division did not know she "had two part time jobs." The Appeal Tribunal determined that because claimant continued to work despite the direction of her physician, she was disqualified from receiving benefits by N.J.S.A. 43:21-39(d) which provides that no benefits shall be payable "for any period during which the claimant is not under the care of a legally licensed physician." The Tribunal also found that because claimant continued to work at Ocean County College despite her physicians direction to cease all work, defendant was disqualified by N.J.S.A. 43:21-39(g) which provides in part that "no benefits shall be payable under the State plan to any person . . . for any period during which the claimant performs any work for remuneration or profit." Finally, the Tribunal rejected claimant's claim for relief pursuant to N.J.A.C. 12:18-3.11 which applies only to cases in which "the claimant was in employment with a full-time employer and a part-time employer immediately preceding the period of disability."
Our review of a decision of an administrative agency is very narrow. We determine only "whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). We will not reverse if the findings of the agency are supported by substantial credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the party challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
Here, the record adequately supports the findings of the agency, and the conclusions drawn from those findings are appropriate. Claimant's claims to the contrary lack sufficient merit to justify further discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).
We briefly address claimant's claim that she should not be required to repay the sums she received and to which she was not entitled. Claimant asserts that her representation that she worked full-time at two positions was inadvertent. We have no reason to question that assertion. Nevertheless, N.J.S.A. 43:21-55.1(a) requires repayment of wrongfully received benefits if the receipt results from the knowing withholding of any material fact. Claimant here failed to disclose that she continued to work at one of her two part-time jobs.
We recognize that N.J.A.C. 12:17-14.2(a) permits a waiver of the repayment obligation in the absence of misrepresentation or failure to disclose, but that waiver is unavailable to one who even negligently withholds a material fact. N.J.A.C. 12:17-14.2(b). We perceive no inequity in the agency determination to require repayment of benefits paid under the belief that claimant was unable to work. See Vasquez v. Horn, 181 N.J. Super. 529, 534 (App. Div. 1981), certif. denied, 91 N.J. 196 (1982).
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