                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1975-14T2

HENRY J. KOCH,

        Claimant-Appellant,

v.

BOARD OF REVIEW, NEW JERSEY
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT, and
ENTEL SYSTEMS, INC.,

     Respondents-Respondents.
_______________________________

              Argued March 13, 2017 – Decided          April 25, 2017

              Before Judges Nugent and Currier.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              336, 396.

              Alan H. Schorr argued the cause for appellant
              (Schorr & Associates, P.C., attorneys; Mr.
              Schorr and Arykah A. Trabosh, on the briefs.

              Alan C. Stephens, Deputy Attorney General,
              argued the cause for respondent Board of
              Review (Christopher S. Porrino, Attorney
              General, attorney; Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel; Mr.
              Stephens, on the brief).

              Respondent     Entel    Systems    has   not   filed   a
              brief.
PER CURIAM

       Claimant Henry J. Koch appeals from the December 12, 2014 and

December 24, 2015 decisions of the Board of Review (Board) finding

him ineligible for unemployment benefits pursuant to N.J.S.A.

43:21-5(a), and liable for a refund under N.J.S.A.           43:21-16(d).

After a review of the contentions advanced on appeal in light of

the record before us and the applicable principles of law, we

reverse.

       Claimant was employed by Entel Systems, Inc.          On March 11,

2010, he wrote an email to his employer stating: "Today [my

supervisor] Told Me That there is No Work For Me Today And I Should

Go Home.      I will be fil[]ing Unemployment Insurance[.]          It was

nice Working with Entel."      In his claim submitted for unemployment

benefits, claimant indicated that his unemployment was due to a

lack    of   work.    The   Division   of   Unemployment   and   Disability

Insurance (Division) approved his application and paid claimant

benefits from March 20, 2010 through March 12, 2011.

       In March 2010, when the Division advised claimant that he was

qualified for benefits, it simultaneously sent a notice to Entel

entitled "Notice to Employer of Monetary Determination and Request

for    Separation    Information"   (form   BC-3E).    The   "Request    for

Separation Information" section requested the employer to return


                                       2                            A-1975-14T2
the form if the claimant was separated for a reason other than

lack of work.     It advised the employer that if the information was

not supplied within ten calendar days after the mailing date of

the    determination,    the   benefit      payments   and   charges   to   the

employer's account would be processed based on the available

information.

       In May 2011, having received information from Entel that

claimant had misrepresented his reasons for unemployment and that

he had quit his job, the Deputy Director (Deputy) of the Division

issued a determination that claimant was disqualified for benefits

because he left work voluntarily without good cause, pursuant to

N.J.S.A. 43:21-5(a).       As a result of the disqualification, the

Division Director (Director) demanded a refund of the received

benefits.

       Claimant    appealed     the       disqualification      and     refund

determinations, arguing that he had refused to perform the assigned

work because of an unsafe condition and that he was advised to "go

home    because   no   other   work   was    available."      After    several

telephonic hearings and appeals to the Appeal Tribunal and Board,

the Board determined in August 2012 that claimant was disqualified

to receive benefits because he left work voluntarily without good

cause attributable to the work, and was therefore liable for a

refund.

                                      3                                A-1975-14T2
       Following an appeal to this court, we found "ample support

in the record" for the Board's ruling that claimant had failed to

demonstrate an unsafe workplace and instead had resigned from his

job.    Koch v. Bd. of Review, No. A-0480-12 (App. Div. July 28,

2014) (slip op. at 14).             As a result, we affirmed the Board's

decision     that        claimant     was       disqualified       from      receiving

unemployment benefits.          Ibid.       We questioned, however, whether

Entel's appeal from the Division's initial decision of eligibility

in March 2010 was timely, stating:

           There is no document [from Entel] appealing
           the [Division's] March 2010 decision in the
           record, nor is there any explanation as to why
           a timely appeal would have taken so long to
           schedule or any other basis for the deputy
           director's notice. We do not find the State's
           suggestion that Koch had the duty to produce
           the appeal document to be at all persuasive.

           [Id. at 12.]

Consequently,       we    remanded    the       case   to   the   Division      for    a

determination       of     "whether     Entel's        appeal     of   the    initial

eligibility decision was timely, and if it was not, whether Entel's

appeal should have been dismissed and Koch's benefits reinstated."

Id. at 14.

       After a hearing in October 2014, at which claimant and the

Division's representative appeared, the Board issued a decision

on December 12, 2014, acknowledging that it was not aware there


                                            4                                  A-1975-14T2
was a dispute concerning claimant's proffered reason for leaving

his job until March 2011.   Although the Board could not produce a

hard copy of Entel's correspondence,1 it advised that a March 22,

2011 entry in the computer record of claimant's unemployment claim

documented the employer's assertion that claimant had voluntarily

quit his job.

     The Board conjectured that there were two reasons why the

Division did not learn of the "separation issue" until March 2011.

               The first cause of this situation was
          that the claimant did not provide the Agency
          with correct information concerning why he was
          out of work. He informed the Division that
          his separation was due to lack of work. At
          our hearing, claimant's attorney insisted that
          this was indeed the reason for his client's
          separation. We respond that the findings of
          the court indicate that the claimant lost his
          job because he refused to perform an assigned
          job, that at the time the claimant stopped
          working the employer sent him a communication
          that they considered that he had quit his job,
          and that his supervisor never told him he was
          terminated. We conclude that had the claimant
          been more forthcoming given the circumstances
          surrounding his separation, the Division would
          have promptly interviewed him and there would
          have been no one-year wait before a non-
          monetary determination was issued.

               The second cause of the delay in
          resolving the separation issue was the massive
          increase on the Agency's workload caused by
          the Great Recession. The testimony from the
          Agency's representative convinces us that the

1 The Board contended the form was either destroyed or lost by the
Division.

                                 5                         A-1975-14T2
            employer reported promptly after its receipt
            of the monetary determination that the
            claimant had quit his job. Nonetheless, the
            Agency apparently was unable to deal with this
            matter until March[] 2011.

     The Board expressed its belief that the employer had promptly

returned the pertinent form disputing claimant's reason for his

separation from work.     It stated:

            The representative of the Division testified
            that it was her belief that the delay in
            resolving the claimant's separation issues was
            caused either by the Agency's difficulty in
            dealing with its massive increase in work, or
            the employer's delay in submitting the BC-3E.
            We are satisfied that the cause was the former
            because we cannot think of any reason why the
            employer would submit the form a year after
            the claim was filed.

     Accordingly, on December 12, 2014, the Board held that Entel

had filed a timely appeal from claimant's benefit determination,

and he remained disqualified for benefits.          Pursuant to our remand

instructions, the Board referred the case to the Director to

determine whether claimant was entitled to a refund waiver.                 On

December 24, 2015, the Board affirmed the Director's decision

finding that claimant was not entitled to a waiver.

     On   appeal,   claimant    argues   that   there   was   no   evidence

presented   to   the   Board   to   support   its   conclusion     that   the

employer's appeal of his eligibility for benefits was timely.




                                     6                               A-1975-14T2
     Our review of administrative agency decisions is limited.        A

reviewing court will not disturb an agency's action unless it was

clearly "arbitrary, capricious, or unreasonable."     Brady v. Bd.

of Review, 152 N.J. 197, 210 (1997) (citation omitted).     Likewise,

judicial review of an agency's factual determination is highly

deferential.    In re Bridgewater, 95 N.J. 235, 245 (1984). "If

substantial credible evidence supports an agency's conclusion, a

court may not substitute its own judgment for the agency's even

though the court might have reached a different result." Greenwood

v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations

omitted).

     After concluding that the Board's determination that claimant

was disqualified to receive unemployment benefits was supported

by the evidence in the record, we remanded for the Board to

determine whether there was a timely appeal filed by the employer

of the March 2010 benefits determination.

     The Board conducted a hearing with the claimant and Division

representative present.    When asked how the computer entry from

form BC-3E did not come into existence until over a year after the

claim was filed, the Division representative responded:

            I can only speculate . . . that either the
            form came in late or because at this point in
            time   we    were   dealing   with   numerous
            correspondence. We had back logs and it may
            have been in that back log pile. And it might

                                  7                           A-1975-14T2
          have been entered [into the computer system]
          when it was discovered.

               . . . .

          I cannot be sure as I do not have the original
          form with the date stamp on it so I do not
          know.

The employer, being absent from the hearing, but apparently being

notified of it, provided no proofs as to when it filed an appeal

of the benefits determination.

     In its decision concluding that there was a timely appeal,

the Board stated:

          [There was a] massive increase on the Agency's
          workload caused by the Great Recession. The
          testimony from the Agency's representative
          convinces us that the employer reported
          promptly after its receipt of the monetary
          determination that the claimant had quit his
          job. Nonetheless, the Agency apparently was
          unable to deal with this matter until March[]
          2011.

The Board continued,

          [W]e believe the employer did promptly return
          the form. The representative of the Division
          testified that it was her belief that the
          delay in resolving the claimant's separation
          issues was caused either by the Agency's
          difficulty in dealing with its massive
          increase in work, or the employer's delay in
          submitting the BC-3E. We are satisfied that
          the cause was the former because we cannot
          think of any reason why the employer would
          submit the form a year after the claim was
          filed.



                                 8                         A-1975-14T2
     The   Board's    conclusions       were    not    based     on   substantial

credible   evidence    in   the   record.      The    agency's   representative

speculated as to what might have occurred with the form. She did

not testify that there was a massive increase in work or refer to

a "great recession."        The Board drew its own conclusion, stating

that it was the logical conclusion. This is not a decision that

is supported by the evidence in the record.              There was no evidence

presented to support a timely appeal as there was no record of the

employer   filing     the   appeal     and   the     employer     chose    not    to

participate in the Board's hearing.

     N.J.S.A. 43:21-6(b)(1) sets forth the procedure for appeals

of an agency determination of unemployment benefits. It states

that unless the claimant or any interested party, within seven

calendar   days   after     delivery    of     notification      of   an   initial

determination or within 10 calendar days after such notification

was mailed to his or their last-known address and addresses, files

an appeal from such decision, such decision shall be final and

benefits shall be paid or denied in accordance therewith.

     New Jersey courts have consistently held that the limitation

period proscribed by this statute is of jurisdictional import and

"hence   not   generally    subject    to    either     equitable     tolling     or

enlargement under the so-called discovery rule."                 Hopkins v. Bd.

of Review, 249 N.J. Super. 84, 88-89 (App. Div. 1991); see also

                                        9                                  A-1975-14T2
Lowden v. Bd. of Review, 78 N.J. Super. 467, 470 (App. Div. 1963)

(explaining   that   the   Unemployment   Compensation     Law   is    social

legislation "which should be construed by the courts to give effect

to its beneficent purposes[]" but does not authorize courts to

extend time limitations intended by the Legislature to be fixed

as an absolute deadline in the statute).

     We find the Board's decision was arbitrary and not supported

by the credible evidence.          We therefore reverse the Board's

decision for the lack of proofs presented to support its conclusion

that the employer filed a timely appeal as required under the

statute.   Accordingly,    we   also   reverse   the   determination      that

claimant is liable for a refund.

     Reversed.




                                   10                                 A-1975-14T2
