On appeal from a Final Decision of the Board of Review, Docket No. 115,002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Gilroy and Baxter.
In this appeal, Crystal Medical Billing (Crystal) challenges an October 3, 2006 Board of Review (Board) decision finding Crystal's former employee, Diana Nino, eligible for unemployment compensation benefits. In particular, the Board concluded that Crystal failed to prove by a preponderance of the evidence that Nino's alleged lack of productivity was intentional rather than the result of illness. In reaching that conclusion, the Board affirmed the July 10, 2006 decision issued by the Appeal Tribunal, which had found Nino eligible for benefits following a hearing before an Appeals Examiner on June 28, 2006.
At the end of the June 28, 2006 hearing and after the record was closed, the following colloquy occurred between Nino and the Appeals Examiner:
CLAIMANT: . . . You [know] what's the funny part, that we billed for the OBGYN and then when I lost the baby, Peyman gave me my job back. When I went on disability the 24th of May that the doctor (inaudible). He says Diana I don't need the (inaudible), I'm going to give you your job back when you finish your pregnancy and complete your disability till your done. He found out the baby died the same day and then he tells me you know since you're no longer pregnant, see what you can do and that's when I told him I'm seeking legal action. I do have an attorney.
CLAIMANT: But I just feel like, you knew I was out sick. We billed for my illnesses and you're going to turn around and say I haven't done the work. I wasn't even here. You should set me up with a laptop in my house if that's what you wanted me to do or set me up in the hospital with a laptop. Anyway, thank you so much.
On appeal, Crystal argues: (1) the Board's decision of October 3, 2006, should be reversed because it was not supported by substantial credible evidence in the record, and was arbitrary, capricious and unreasonable; and (2) Nino made improper, prejudicial, false and inflammatory statements about Crystal to the Appeals Examiner after the hearing was closed and immediately after the employer's representative, Peyman Maghsoudolou, had left the room, thereby depriving Crystal of a fair hearing and necessitating a reversal.
In response to Crystal's second argument, the Board argues that "a review of the transcript does not unequivocally show that such an ex parte exchange took place after the employer left the hearing room." The Board further maintains that "the alleged ex parte exchange does not alter the evidence set forth in the totality of the record which amply demonstrates that Nino's actions in failing to complete her work were not the result [of] deliberate acts [on her part]." Nino herself has not filed a brief and accordingly has not taken a position on the question of whether Maghsoudolou was still in the room. In light of our uncertainty about whether the employer's representative had already left the room when the above exchange occurred, we decline to decide the ultimate issue of whether the Board's decision that Nino was entitled to unemployment compensation benefits should be affirmed or reversed. Instead, we conclude that no decision should be reached until the circumstances surrounding the colloquy at the end of the hearing are resolved. We remand to the same hearing examiner who conducted the proceedings on June 28, 2006, who shall file a report with this court no later than thirty ...