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Sweatte v. Board of Review

April 27, 2010

KENNETH E. SWEATTE, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND LOCKHEED MARTIN OPERATIONS, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 176,706.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2010

Before Judges Wefing and Messano.

Kenneth E. Sweatte appeals from the decision of the Board of Review (the Board) that reduced the weekly benefit rate and maximum benefit of his claim for unemployment compensation. We have considered the arguments appellant raises in light of the record and applicable legal standards. We affirm the Board's decision.

The facts are undisputed. Appellant was employed at various times between 2004 and 2006 by Randstadt North America (Randstadt), respondent Lockheed Martin Operation Support, Inc. (Lockheed), and Environgenics Health & Safety (EHS). Appellant filed a claim for unemployment benefits, effective December 10, 2006. The initial base year upon which benefits were calculated, i.e., July 1, 2005 through June 30, 2006, resulted in appellant receiving a weekly benefit of $521, and a maximum benefit amount of $13,546. He continued to receive weekly benefits through July 14, 2007, when his claim was exhausted.

Appellant's benefits were calculated upon an amount that included $10,860.08 he received from Lockheed during the second quarter of 2006. However, it was later discovered that appellant was not employed by Lockheed at any point during 2005 and 2006. The lump sum payment was an award of back pay from a "settlement," which appellant describes in his brief as resulting from an action brought by the Department of Labor against Lockheed on behalf of all "Environmental Technicians."

As a result, on January 9, 2008, the Director of the Division of Unemployment Insurance (the Director) issued a "Request for Refund of Unemployment Benefits." Based upon the exclusion of the lump sum payment, the Director recalculated the benefits appellant was entitled to receive, reducing the weekly benefit amount to $380, and the total benefit amount to $9880. The Director demanded that appellant refund overpayments in the amount of $4066.

Appellant sought review of this determination and a hearing was held before the Appeal Tribunal. After considering appellant's testimony and reviewing the applicable records, the Appeal Tribunal concluded that appellant had only worked for Randstadt and EHS during the base period, and that his total earnings, excluding the lump sum payment from Lockheed, was $20,809.50. It determined that appellant's weekly benefit amount was therefore $356, that his maximum benefit amount was $9256, and that a refund of $4808 was due. The Appeal Tribunal issued its decision modifying the Director's determination accordingly.

Appellant sought review by the Board. Noting that appellant had a verified dependent, the Board increased appellant's weekly benefit amount to $380, his maximum benefit amount to $9880, and remanded the issue of any "refund" to the Director for further consideration. This appeal followed.*fn1

Appellant argues that in 2006, he was "rehired . . . and issued past earnings" by Lockheed reflected in the lump sum payment he received in the second quarter of that year. Relying upon our decision in Darby v. Bd. of Review, 359 N.J. Super. 479 (App. Div.), cert. denied, 177 N.J. 494 (2003), and various regulations which we discuss below, he contends that the lump sum amount should have been included in his earnings for the base year upon which his benefits were calculated. Thus, he argues, the original benefit amounts he received were correct, and he owes no refund for overpayments.

Our "capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted).

[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs. If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." [Ibid. (internal quotations and citations omitted)]

Furthermore, the Board's "interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Only if the Board's action was ...


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