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Torres v. Board of Review


June 26, 2007


On appeal from a Final Decision of The Board of Review, Docket No. 74,461.

Per curiam.


Submitted June 12, 2007

Before Judges Kestin and Lefelt.

The Division of Unemployment Insurance charged Andrea Torres with obtaining unemployment benefits through false or fraudulent misrepresentation and sought the return of the improperly received benefits, disqualification from future benefits for a certain period, and a monetary penalty. She now appeals from a Board of Review final decision, affirming the Appeal Tribunal, finding her liable for a refund of approximately $11,600, pursuant to N.J.S.A. 43:21-16(d); imposing a fine of almost $3,000, pursuant to N.J.S.A. 43:21-16(a); and declaring her disqualification for the required period in accordance with N.J.S.A. 43:21-5(g)(1). We affirm.

Below, Torres conceded that she had collected unemployment benefits while working part-time for the Palisades Medical Center, and that she understood her obligation to call the unemployment office to report her earnings so that her benefits could be adjusted downward, in accordance with N.J.S.A. 43:21-3(b). Additionally, she contended that she complied with these obligations by using "the telephone claim system" to report her earnings bi-weekly, but because she "had no indication" that anything was amiss, she took no further action. Therefore, she argued both before the agency below, and now before us, that her actions were not "inappropriate."

The Appeal Tribunal found, however, that her contention that "she reported partial earnings during the weeks in question" was "without merit." The agency's records reflected that Torres had reported her earnings on seven out of the forty two weeks she collected benefits. The examiner, therefore, found that "[t]here were too many weeks involved to assume the certification system made an error from the claimant's alleged reporting of her wages."

Our review of agency determinations is quite limited. We will overturn only those administrative determinations that are arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). An administrative decision that is unsupported by substantial, or sufficient credible evidence in the record is arbitrary and will be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). However, "[w]here there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)). Therefore, we must sustain agency factual determinations "if they could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole and with due regard to the opportunity of the one who heard the witnesses to judge their credibility as well as the agency's expertise where this is a pertinent factor." Castellano v. Linden Bd. of Educ., 79 N.J. 407, 418-19 (1979) (quoting Gilchrist v. Bd. of Educ., 155 N.J. Super. 358, 367-68 (App. Div. 1978)).

In this matter, the agency has decided that Torres's testimony was untruthful. That determination, together with the other evidence tending to establish the benefit overpayments, constitutes sufficient credible evidence in the record, and we are thereby obligated to affirm the Board of Review's final decision.



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