LIZA ATAMY VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-3895-15T3

LIZA ATAMY,

Appellant,

v.

BOARD OF REVIEW
and PATERSON CHARTER
SCHOOL FOR SCIENCE AND
TECHNOLOGY,

Respondents.
____________________________

Submitted July 31, 2018 – Decided August 7, 2018

Before Judges Sabatino and Mayer.

On appeal from the Board of Review, Department
of Labor, Docket No. 023,615.

Legal Services of New Jersey, Inc., attorneys
for appellant (Sarah S. Hymowitz, on the
briefs).

Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Elizabeth A. Davies, Deputy Attorney
General, on the brief).

Respondent Paterson Charter School for Science
and Technology has not filed a brief.
PER CURIAM

Liza Atamy appeals from a final agency decision of the Board

of Review deeming her ineligible for unemployment benefits from

October 13, 2013 through December 7, 2013. We reverse and remand

for corrective action.

Atamy, a former employee of the Paterson Charter School for

Science and Technology, applied for unemployment benefits. Atamy

collected unemployment benefits for a few weeks until a deputy

with the Department of Labor and Workforce Development

disqualified her upon concluding she had voluntarily left work

without good cause attributable to the work. N.J.S.A. 43:21-5(a).

Atamy appealed administratively and the Appeal Tribunal

initially reversed the deputy's determination. The employer then

appealed to the Board and a second hearing was held by the

Tribunal. After the second hearing, on July 21, 2014, the Appeal

Tribunal disqualified appellant from receipt of benefits for an

eight week period for what it deemed to be "work-related"

misconduct. N.J.S.A. 43:21-5(b).

After the disqualification period expired, Atamy would have

been eligible for unemployment benefits, had she contacted the

agency to report her weekly benefits, for the time period of

2 A-3895-15T3
October 26, 2013 to December 7, 2013.1 Atamy mistakenly believed

she was ineligible to receive unemployment benefits while she was

awaiting her second appeal hearing before the Tribunal and

therefore did not report her ongoing employment status during that

time.

Atamy sought to retroactively claim her unemployment benefits

for October 13, 2013 to December 7, 2013. A Department of Labor

and Workforce Development deputy held Atamy was ineligible for

benefits during this time period because she had failed to report.

Atamy appealed and the Appeal Tribunal held a telephonic

hearing. Atamy, who was then self-represented, testified she did

not receive the Department of Labor and Workforce Development's

unemployment handbook, which is customarily provided to claimants

at the outset of an unemployment claim. Atamy further stated she

did not know she was supposed to claim benefits during the pendency

of her appeal. Atamy explained she never had claimed unemployment

benefits previously and was unfamiliar with the process. Atamy

also testified she did not recall receiving the Notice of Receipt

of Appeal, a document which instructs claimants to continue

claiming benefits while awaiting an appeal hearing.

1
On December 5, 2013, Atamy took a new job, therefore ending her
period of potential eligibility.

3 A-3895-15T3
Significantly, the appeal examiner never confirmed proof of the

date the Notice of Receipt of Appeal was supposedly mailed to

Atamy.2

The Appeal Tribunal agreed with the deputy's determination,

finding that the Notice of Receipt of Appeal, which it presumed

had been timely sent, provided sufficient notice of Atamy's

obligation to continue claiming benefits during the pendency of

her appeal. The Tribunal held Atamy was ineligible for

unemployment benefits from October 13, 2013 to December 7, 2013.

Atamy appealed the Appeal Tribunal's determination to the

Board. The Board summarily affirmed that ruling. Atamy sought

to reopen the Board's decision because she had not received at

least two of the three documents ordinarily provided by the

Department of Labor and Workforce Development explaining the

procedure for claiming unemployment benefits while awaiting an

appeal hearing.3 The Board nonetheless denied Atamy's request to

reopen the matter.

2
Atamy subsequently retained counsel and learned the Notice of
Receipt of Appeal actually was not sent by the agency until
December 27, 2013, well after the expiration of her unemployment
claim period.
3
There are three documents that are supposed to be provided to
individuals who file for unemployment benefits: the unemployment
handbook, posted on the Department of Labor and Workforce
Development's website; the Notice of Receipt of Appeal; and the
Notice of Determination.

4 A-3895-15T3
 Atamy filed an appeal with this court. She also filed a

motion to remand the matter to the Board to address inaccuracies

in the Board's decision. On October 13, 2016, we granted Atamy's

unopposed motion for a remand to the Board to consider the

additional submissions.

The Board remanded the case to the Appeal Tribunal to conduct

another hearing on Atamy's retroactive unemployment benefits

claim. Atamy reiterated her prior testimony that she did not

receive the unemployment handbook and did not recall receiving the

Notice of Receipt of Appeal.

Because the appeal examiner was unable to confirm on remand

the date the Notice of Receipt of Appeal was mailed to Atamy, the

Appeal Tribunal instead focused its denial of unemployment

benefits on the Notice of Determination sent to Atamy on October

21, 2013. Atamy testified that she did receive the Notice of

Determination but did not recall reviewing the instructions on the

reverse side of that notice. The Tribunal consequently held that

Atamy was ineligible for unemployment benefits from October 13,

2013 to December 7, 2013 because she failed to claim her benefits

without good cause. The Board summarily affirmed the Appeal

Tribunal's decision.

On appeal, Atamy argues she had good cause for not claiming

unemployment benefits because she did not receive adequate notice

5 A-3895-15T3
of her obligation to continue claiming entitlement to benefits

while her appeal was pending. She does not contest the denial of

benefits for the earlier period of September 1, 2013 to October

26, 2013 founded on work-related misconduct.

Our review of an administrative agency's final decision is

limited. In re Stallworth, 208 N.J. 182, 194 (2011). We reverse

an agency's determination only if it is arbitrary, capricious,

unreasonable, or unsupported by substantial credible evidence.

Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).

"[I]n reviewing the factual findings made in an unemployment

compensation proceeding, the test is not whether an appellate

court would come to the same conclusion if the original

determination was its to make, but rather whether the factfinder

could reasonably so conclude upon the proofs." Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997).

We acknowledge that we owe considerable deference to the

Board in administering our state's unemployment compensation laws.

Ibid. Nevertheless, based on the discrete chronology of this

case, we conclude the agency misapplied the relevant legal

standards and acted arbitrarily, capriciously, and unreasonably

in rejecting appellant's claim with respect to her eligibility for

the limited period of October 26, 2013 to December 7, 2013.

6 A-3895-15T3
 The primary issue on appeal is the adequacy of the agency's

notice to Atamy that she needed to report her unemployment status,

while her appeal was pending, to be eligible for continuing

benefits. Atamy testified, without contradiction, that she never

received the unemployment handbook and did not timely receive the

Notice of Receipt of Appeal and therefore was unaware of the

obligation to continue to report.

The unemployment handbook from the agency provides an

overview of the unemployment benefits process and procedure. At

the time Atamy was eligible for unemployment benefits, the handbook

was no longer being mailed to claimants. Instead, claimants are

now directed to download the handbook from the agency's website.4

The online handbook, in a stand-alone text box, expressly and

conspicuously instructs claimants to continue claiming benefits

during the pendency of an appeal.

Nor did Atamy timely receive the Notice of Receipt of Appeal.

The Notice of Receipt of Appeal typically is sent to claimants one

to two weeks after filing an appeal with the Appeal Tribunal. This

document explicitly instructs claimants to continue claiming

4
We express here some misgivings regarding the effectiveness of
the Department of Labor and Workforce Development's "web
notification," directing claimants to download the handbook
instead of mailing the document to claimants, without some
mechanism for verifying that the claimant received the handbook.

7 A-3895-15T3
benefits while awaiting an appeal hearing. The Notice of Receipt

of Appeal states:

Claiming Benefits: While you are waiting for
your appeal, and as long as you are
unemployed, you must continue to claim your
continued weeks of unemployment benefits every
two weeks. If you do not claim every two
weeks, you may lose your benefits even if the
Appeal Tribunal decides in your favor.

The Board does not dispute Atamy's contention on appeal that

the Notice of Receipt of Appeal, which should have been mailed in

early November, was not mailed until December 27, 2013, after her

unemployment claim period expired. The late Notice of Receipt of

Appeal rendered the notice ineffective as to Atamy's benefits

claim.

While Atamy received the Notice of Determination, that

document fails to prominently explain the procedure for claiming

benefits while awaiting an appeal hearing. Unlike the Notice of

Receipt of Appeal, the Notice of Determination does not contain

bolded or highlighted information regarding a claimant's

obligation to continue claiming benefits while awaiting an appeal

hearing. Significantly, the Notice of Determination contains

information concerning a claimant's obligations only on the

reverse side of the document and it is not prominently delineated.

An individual is unlikely to review the back of the Notice of

Determination because the front of the document advises that the

8 A-3895-15T3
claimant is disqualified from receipt of benefits and provides

information as to when and where a claimant must file an appeal.

N.J.A.C. 12:17-4.1(b) governs the processing of claims for

receipt of unemployment benefits. In accordance with this

regulation:

An individual who fails to report as directed
will be ineligible for benefits unless,
pursuant to a fact-finding hearing, it is
determined that there is "good cause" for
failing to comply. For the purposes of this
subchapter, "good cause" means any situation
which was substantial and prevented the
claimant from reporting as required by the
Division.

[N.J.A.C. 12:17-4.1(b).]

Having reviewed the record under the particular circumstances

in this case, we find Atamy met the good cause standard for failing

to report because she did not receive the unemployment handbook

and did not timely receive the Notice of Receipt of Appeal. If

the Notice of Determination alone were sufficient to inform a

claimant of his or her continuing obligation to claim unemployment

benefits while awaiting an appeal hearing, the agency would not

need to direct claimants to review the unemployment handbook and

convey an explicit and bolded instruction in the Notice of Receipt

of Appeal.

Based on the foregoing, the Board's decision was arbitrary

and capricious, warranting reversal of the Board's denial of

9 A-3895-15T3
Atamy's unemployment benefits from October 26, 2013 to December

7, 2013. The Board shall pay to Atamy her unemployment benefits

for October 26, 2013 to December 7, 2013, less the $2,754 sum

Atamy received in benefits from September 1, 2013 to October 26,

2013, when she was disqualified from receipt of unemployment

benefits.

Reversed and remanded for the entry of relief consistent with

this opinion. We do not retain jurisdiction.

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