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Naida A. Frazier v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2011

NAIDA A. FRAZIER, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND RITE AID OF NEW JERSEY, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 193,652.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 16, 2011 - Decided: Before Judges Cuff and Simonelli.

In A-4024-08T3, we affirmed the final decision of the Board of Review (Board), which disqualified claimant from receipt of unemployment compensation because she left her job without good cause attributable to the work. In this appeal, claimant appeals the final decision of the Board that claimant is liable to refund unemployment compensation benefits received between June 28, 2008 and December 6, 2008, totaling $9408.

In her brief in this appeal, claimant reargues the merits of her disqualification. This argument is misdirected in the context of an appeal from an order requiring refund of benefits paid.

The New Jersey Unemployment Compensation Law provides that when a determination is made by the Division of Unemployment and Temporary Disability Insurance (Division): that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact . . . or (ii) for any other reason, has received any sum as benefits . . . while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person, unless the director . . . directs otherwise by regulation, shall be liable to repay those benefits in full. [N.J.S.A. 43:21-16(d).]

In Bannan v. Board of Review, 299 N.J. Super. 671, 674 (App. Div. 1997), this court affirmed the proposition that full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." Recovery of such benefits "furthers the

purpose of the unemployment compensation laws" and we emphasized that the Unemployment Trust Fund must be preserved "for the payment of benefits to those individuals entitled to receive them." Ibid. We stressed that:

The public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been. [Ibid.]

We acknowledged the hardship suffered by some claimants who are required to repay benefits but found recoupment is crucial to the preservation of "the ongoing integrity of the unemployment compensation system." Id. at 675.

In Bannan, we observed that "federal law requires that a state recover improperly paid unemployment compensation benefits." Ibid. For example, federal law requires the Division to ensure that all federal moneys are used for the proper and efficient administration of the unemployment compensation laws. 42 U.S.C.A. § 502(a). Federal law also requires that benefits be paid "when due." 42 U.S.C.A. § 503(a)(1). This latter provision often results in payments being made upon an initial determination of eligibility which, as here, is subsequently overturned. See Brewer v. Cantrell, 622 F. Supp. 1320, 1323-24 (W.D. Va. 1985), aff'd, 796 F.2d 472 (4th Cir. 1986). As such payments are not "unemployment compensation," the moneys are not being used solely for the administration of the unemployment compensation laws and must be recouped. Bannan, supra, 299 N.J. Super. at 675.

The Division is also required, by regulation, to issue a demand for a refund of improperly paid benefits whenever a determination of overpayment is made. N.J.A.C. 12:17-14.1. Except in instances of fraud, the Division is directed to seek refunds "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1); N.J.A.C. 12:17-14.1. Here, the Division clearly acted within the statutory time limit. Frazier collected $9408 in unemployment benefits for weeks ending June 28, 2008 through December 6, 2008. The Director sought a refund from her on December 27, 2008, approximately six months after the first benefits were paid. The refund demand was timely, and Frazier is liable for a refund of the benefits she collected.

The State allows waivers of repayment or a payment schedule and has adopted standards to evaluate such requests. N.J.A.C. 12:17-14.2(a). The record contains no evidence that claimant has pursued remission of the debt.

Having admitted receipt of the benefits, having failed to overturn the disqualification order on appeal, and havingpresented no evidence that she sought a waiver of the refund, we affirm.

Affirmed.

20110225

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