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Beltre v. Board of Review

November 24, 2009

ANGELA R. BELTRE, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, SCHOLASTIC BUS CO., ACCREDITED HEALTH SERVICE, NYHC NEWCO PAXXON, T/A HELPING HANDS HEALTHCARE, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 180,087.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2009

Before Judges Carchman and Ashrafi.

Angela R. Beltre appeals from a decision of the Department of Labor (DOL), dismissing as untimely her appeal from disqualification for unemployment benefits and assessment of refunds and fines. We affirm.

Appellant, a 51-year-old widow whose primary language is Spanish, worked part-time jobs as a school bus driver and a home health aide for three employers during the relevant time period from 2002 to 2007. She collected unemployment benefits when school was not in session.

By four letters to appellant, all dated January 4, 2008, the DOL listed a total of sixty-one weeks from July 27, 2002, through September 8, 2007, during which she received overpayment of benefits. The letters indicated that she was required to refund a total of $7,697. The letters also notified appellant that she had ten days to respond, that a determination would be made on the basis of the information available to the DOL if she did not respond, that she could request a hearing, and that fines and disqualification for one year could be imposed as penalties for willful misrepresentation of her income.

In accordance with instructions on the letters, appellant handwrote responses on the backs of the letters stating that she had not earned the amounts stated, had not worked during some of the periods shown, or had not received unemployment benefits as listed in the letters, and she requested a hearing. The record before us does not show when her handwritten responses were sent to the DOL.

By four letters, all dated January 24, 2008, the DOL notified appellant of its determination that she was not eligible for unemployment benefits during the sixty-one weeks previously listed because she had falsely or fraudulently misrepresented her income. The letters included schedules showing the overpayment for each listed week. Pursuant to N.J.S.A. 43:21-5 and -16d, the letters imposed penalties of disqualification from receipt of unemployment benefits for one year, refund of a total of $7,697, and total fines of $1,924.25, which is twenty-five percent of the refunds due. The total amount payable by appellant was $9,621.25.

Under the subheading "Appeal Procedure," the four letters stated in both English and Spanish: "If you disagree with this decision, you must file a written appeal within seven (7) calendar days after delivery or within ten (10) days after the mailing of this notice." Appellant had until February 3, 2008, to file an appeal. She did not do so.

By letter dated February 19, 2008, and received by the DOL on February 22, 2008, an attorney filed an appeal on appellant's behalf and requested a hearing and factual finding regarding the DOL's determination.

On April 9, 2008, a telephone hearing was held by the Appeal Tribunal. Appellant participated with her attorney and an interpreter. A DOL investigator testified that he obtained information in 2007 through computer cross-checking that appellant had received more pay from her jobs than she had reported. He then recapitulated the overpayments as contained on the schedules provided in the several letters sent to appellant.

Appellant testified that she disagreed with the DOL's allegations, but she could not be specific regarding any particular week or amount received because there were "too many figures for me to look at." When the Appeals Examiner asked whether she had any proof to dispute the DOL's information about the pay she had received and the amounts of overpayment, she said she showed her paystubs when she applied for unemployment benefits and relied upon the personnel at the unemployment office to determine the amount of benefits to which she was entitled.

The Appeals Examiner also briefly questioned appellant about why she had not filed a timely appeal within ten days of the January 24, 2008 letter-notices. She testified that she had "family difficulties," that a family member was in the hospital. Her attorney then said that she had come to see him about the letter-notices on February 19, 2008, the same date that he had requested a hearing. When appellant was asked if she was aware of the ten-day deadline for mailing a request for an appeal, she responded that ...


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