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Cassidy v. Board of Review

August 20, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 225,428.

Per curiam.


Submitted August 10, 2010

Before Judges Sabatino and Ashrafi.

Claimant Edward Cassidy appeals from a final decision of the Board of Review, Department of Labor, dated October 21, 2009, affirming denial of his request for a waiver of the requirement that he refund unemployment benefits and pay a fine. We reject the appeal and affirm the decision of the Board of Review.

On March 9, 1997, Cassidy filed for unemployment benefits after being terminated from his plumbing job. He was paid a weekly benefit rate of $340 through November 22, 1997.

On August 23, 2000, the Director of the Division of Unemployment and Disability Insurance (the Division) notified Cassidy that he was liable for a refund of benefits totaling $2,380 pursuant to N.J.S.A. 43:21-16d. The demand for refund followed an investigation by the Division revealing that Cassidy had obtained new full-time employment for part of the relevant time period in which he collected unemployment payments. The Director found that Cassidy had obtained benefits "through false or fraudulent misrepresentation" in that he had failed to disclose to the Division that he was working and earning income. In addition to the refund, the Director assessed a fine of $595 under N.J.S.A. 43:21-16a, and accrued interest of $610.60, for a total demanded from Cassidy of $3,585.60.

Cassidy appealed the Director's decision. The Appeal Tribunal affirmed the decision on April 26, 2002. Cassidy initiated further appeal to the Board of Review, but that appeal was dismissed under N.J.S.A. 43:21-6c because it was filed beyond the ten-day deadline. Cassidy did not pursue the matter further at that time.

On March 1, 2009, after learning of a judgment against him for the amounts due and still remaining unpaid, Cassidy applied for waiver of the overpayment and fine under N.J.A.C. 12:17-14.2 on the ground that he is now disabled. By Notice of Determination dated March 10, 2009, the Director denied his application for waiver. On appeal of that decision, the Appeal Tribunal held a telephone hearing on June 25, 2009, and it affirmed the Director's decision, stating:

The claimant in this case received benefits through willful misrepresentati[on] or nondisclosure to the Division. As a result, this receipt of benefits was not without fault by the claimant. Thus, the claimant's request for waiver of refund in the amount of $3,585.60 paid in benefits for the weeks ending 10/11/97 through 11/22/97 [is] denied in accordance with N.J.A.C. 12:17-14.2(a) [and] (b).

On further administrative appeal, the Board of Review affirmed the decision of the Appeal Tribunal on October 21, 2009.

In his appeal before us, Cassidy claims that his rights were violated in ordering the refund and imposing the fine because the hearing officer in 2002 was prejudiced against him, and the Division did not prove that he had collected unemployment benefits at the same time that he was earning income. It is too late, however, to argue the merits of the original decisions of the Division dating back to 2002. Cassidy failed to pursue those appeals in a timely manner as required by N.J.S.A. 43:21-6c. See Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963); see also Von Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.) (decision of Appeal Tribunal is final if appeal is not initiated within ten days), certif. denied, 130 N.J. 10 (1992).

With respect to the 2009 decisions denying his application for waiver, from which Cassidy filed timely appeals, we see no reason to intervene. The Division's investigation in 2000 determined that Cassidy was not entitled to all the unemployment benefits he received in 1997 because he was working full time during a number of weeks that he collected payment. In the June 25, 2009 telephone hearing, Cassidy offered no evidence to refute the Division's claims but said that he did not remember the dates that he worked because it was so long ago. Also, he stated he believed the employer was responsible for reporting his earnings, and so, he did not report them himself. The Appeal Tribunal rejected this testimony as demonstrating that Cassidy bore no responsibility for receiving the benefits while working. Cassidy certainly knew whether he was ...

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