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Molloy v. Board of Review

April 7, 2009


On appeal from the Board of Review, Department of Labor, Docket No. 148,476.

Per curiam.


Argued February 23, 2009

Before Judges Sapp-Peterson and Alvarez.

Petitioner, Dori J. Molloy, appeals the March 19, 2008 final decision of the Board of Review (the Board) affirming an Appeal Tribunal order following several hearings, which required her to refund $4808 in unemployment benefits. We affirm.

Petitioner's job at Colonial Supplemental Insurance (Colonial), a subsidiary of Unumprovident Corp., ended August 27, 2006, when the company downsized and her position was moved out-of-state. In September 2006, petitioner commenced to work for her former employer on a commission-only basis, enrolling small businesses in the several insurance programs Colonial offered. Petitioner did not sell coverage; rather, she completed the necessary paperwork to enroll new insureds once policies were sold and forwarded the materials for processing. Colonial scheduled the appointments on Monday through Friday, during normal business hours.

Because the Appeal Tribunal determined that petitioner was actually self-employed as a commissioned salesperson during the weeks in question, she was found to be ineligible for benefits within the meaning of the unemployment compensation law, N.J.S.A. 43:21-1 to -24.30. Accordingly, the Appeal Tribunal ordered that previously paid benefits had to be reimbursed. Four hearings were conducted before the matter concluded, the last two as a result of a November 26, 2007 remand by the Board. In the remand decision, the Board directed the Appeal Tribunal to take additional testimony as to whether petitioner's wages were earned in employment and whether she was available for work and actively seeking work. See N.J.S.A. 43:21-4(c). The hearings were also occasioned by difficulties in obtaining petitioner's complete records.

Petitioner was paid $4808 in unemployment benefits for the weeks ending September 2, 2006, through September 23, 2006, October 21, 2006, January 6, 2007, through January 13, 2007, February 3, 2007, and March 31, 2007, through April 7, 2007. Petitioner was paid approximately $10,392 in commissions by Colonial from September 2006 to March 2007.

Petitioner filed certifications for benefits via the internet, by phone, and in person. The certifications included the hours she worked as well as the commissions she earned. At the second of the four hearings, conducted on August 30, 2007, petitioner repudiated the information contained in several of her prior certifications as to hours worked. She testified that she had mistakenly included the hours she spent looking for work together with hours actually worked for Colonial. When asked why she included both, she said, "I don't know, I just wasn't thinking." Petitioner is a certified public accountant who holds a master's degree in business administration.

The third hearing, conducted on December 14, 2007, was carried to December 17, 2007, because petitioner's records were still unavailable. At the final December 17 hearing, petitioner repeatedly insisted that the discrepancies between the number of hours she worked as she originally certified and as amended on August 30, 2007, were due to bad recordkeeping on her part and the inclusion of hours that she spent looking for employment. She also asserted that she did not know what she had been "thinking" when she completed the paperwork, and that she "should have been more careful." She denied knowing the designation of the specific income tax form that her accountant had filed on her behalf for the 2006 income year. She explained that she was unable to produce the names of all of the prospective employers to whom she had sent resumes or otherwise contacted for work because her computer had "crashed" in "maybe January" of that year.

At the December 17, 2007 final hearing, petitioner was asked about the following statement included in her April 17, 2007 appeal of the initial determination that she owed a refund: "I am also cold calling for appointments and meeting with brokers to sell my own cases in hopes to grow my own block of business and be able to sustain myself in the next few months financially." Despite this unsolicited statement written by petitioner herself, at the final hearing she flatly denied making cold calls soliciting commission work. She claimed that she might have meant that she made cold calls "looking for a job." She later said, "I don't know why I wrote that."

Not surprisingly, the Appeal Tribunal found petitioner's statements not credible as to her purported misunderstanding of the meaning of the phrase "hours worked," her poor recordkeeping and other reasons for providing mistaken information on the original certifications. Given her educational background, the Appeal Tribunal considered the statements to be particularly incredible. Hence, the Appeal Tribunal concluded that petitioner was not available for work, but was in actuality, a self-employed person earning commissions and seeking to establish her own business.

When an administrative agency issues a final decision, our review is limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). Our role is to "survey the record to determine whether there is sufficient credible competent evidence... to support the agency... conclusions." Ibid. We do not reverse an agency decision unless it is "'arbitrary, capricious or unreasonable' or it is unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

An agency's credibility findings are entitled to substantial deference. State v. Locurto, 157 N.J. 463, 472 (1999). The decision whether to accept or reject witnesses' testimony rests with the agency so long as the choice is reasonably made. Where reasonable, the decision is conclusive on appeal. Renan ...

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