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Germek v. Board of Review


November 9, 2009


On appeal from a Final Decision of the Board of Review, Docket No. 165,783.

Per curiam.


Submitted October 14, 2009

Before Judges Wefing, Messano and LeWinn.

Appellant appeals from a Final Decision of the Board of Review, which upheld the determination of the Appeal Tribunal that appellant is obligated to refund a total of $17,267 in unemployment compensation benefits to which he was not entitled and to pay fines totaling $4,338 pursuant to N.J.S.A. 43:21-16(a), (d). Appellant was also disqualified from receiving further unemployment compensation benefits for one year pursuant to N.J.S.A. 43:21-5(g)(1). After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings.

Appellant filed three separate claims for unemployment compensation benefits, on May 5, 2002, on May 4, 2003, and on June 6, 2004. He reported having no wages during the periods he collected benefits. Some time after his receipt of the benefits, a routine computer cross-check turned up evidence that he had indeed collected wages for some of the time he was collecting unemployment compensation benefits. The Board of Review adopted the findings of the Appeal Tribunal that for the first claim period, for example, he received thirteen weekly payments, totaling $5,335 after reporting he had not earned any wages for those times.*fn1 Investigation, however, turned up evidence that he had earned weekly sums ranging from $108 to $150 during those same weeks.

The same occurred for his second and third claims periods. The Board of Review adopted the findings of the Appeal Tribunal that in the second period he had collected unemployment compensation benefits on ten weeks for which he reported no earnings to the Division but had, in fact, earned sums between $155 and $525 per week.*fn2 In the third claims period, he collected unemployment compensation benefits for twenty-eight weeks in which he reported no earnings but had received wages ranging from $94 to $2,010.

There were two hearings before the Appeal Tribunal. Appellant testified that he worked sporadically as an adjunct faculty member at several different colleges. He said that he was not paid on a weekly basis in these positions. He said that he tried to report this using the Division's telephone system but that the nature of his work and his intermittent pay precluded him from doing so. He also testified that he had spoken by telephone with representatives of the Division, had explained the situation, and was informed that his sporadic part-time work did not disqualify him and that he should not make any further reports. He insisted that he had not tried to obtain benefits fraudulently. In support of his contention that he had been misadvised by Division employees, he noted that he had just received notification that he was eligible for an additional $6,000 in unemployment benefits even though he was, by the time of the hearing, working full time.

After the first hearing, the Appeal Tribunal found that appellant had received these benefits improperly and was liable for reimbursement and fines as noted above. The Board of Review remanded the matter to the Appeal Tribunal to elicit further testimony as to what instructions appellant may have received. Appellant was not able to identify the examiners with whom he may have spoken because of the years which had elapsed. A representative of the Division testified as to the training and instruction given to the examiners and that it would be contrary to the Division's policy to tell an applicant not to report earnings. The representative testified that the examiners to whom appellant had spoken were not available to testify. He also admitted that appellant's situation was complicated and that he should have been given an appointment for a personal interview and assessment of his eligibility.

After that second hearing, the Appeal Tribunal adhered to its original decision, which the Board of Review affirmed. This appeal followed.

On appeal, appellant does not contest his obligation to refund the benefits he may have received in error. He only challenges the assessment of the fines and disqualification for benefits, maintaining as he has all along that he did not act to deceive the Division.

N.J.S.A. 43:21-16 imposes fines upon anyone who knowingly makes a false statement or knowingly fails to disclose a material fact. Neither the Appeal Tribunal nor the Board of Review made any finding as to the credibility of appellant's testimony that he acted as he did only because he was advised by Division representatives to do so. In our judgment, that assessment of his credibility is critical to resolution of this appeal. Orzel v. Board of Review, 386 N.J. Super. 338 (App. Div. 2006).

We thus remand this matter for further proceedings. Appellant should be afforded the opportunity to argue from the record presented why his testimony should be accepted as credible. If any mathematical adjustments are needed, they shall be completed on remand.

Remanded for further proceedings. We do not retain jurisdiction.

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