The opinion
NOT FOR PUBLICATION WITHOUT THE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-2828-23
PORSIA S. GRAHAM,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT,
and SUMMIT HEALTH
MANAGEMENT, LLC,
Respondents.
_____________________________
Submitted February 4, 2026 – Decided March 27, 2026
Before Judges Paganelli and Vanek.
On appeal from the Board of Review, Division of
Unemployment Insurance, Department of Labor and
Workforce Development, Docket No. 288224.
Porsia S. Graham, self-represented appellant.
Jennifer Davenport, Acting Attorney General, attorney
for respondent Board of Review (Janet Greenberg
Cohen, Assistant Attorney General, of counsel; Gina
M. Labrecque, Deputy Attorney General, on the brief).
PER CURIAM
Porsia S. Graham appeals from a March 27, 2024 final agency decision of
the Board of Review, Department of Labor and Workforce Development
(Board). The Board had dismissed her appeal of its redetermination and request
for refund of overpaid unemployment benefits as untimely. We affirm.
Graham received unemployment benefits from October 11, 2020, through
July 24, 2021. On March 15, 2022, the Division of Unemployment and
Disability Insurance (the Division) issued a redetermination decision, finding
she was ineligible for benefits for those dates, because her earnings "exceeded
her partial weekly benefit rate." The Director of the Division determined
Graham was required to repay approximately eight thousand dollars, relying on
N.J.S.A. 43:21-16(d).
On March 21, 2022, Graham appealed the redetermination decision and
the request for repayment. A telephonic hearing was scheduled for May 6, 2022.
Graham failed to register and did not appear for her hearing. The Appeal
Tribunal notified Graham that her appeal was dismissed pursuant to N.J.A.C.
1:12-14.4(a).
On May 19, 2022, Graham wrote to the Appeal Tribunal and requested
another hearing. The matter was reopened. The Appeal Tribunal notified
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Graham that another hearing was scheduled for August 1, 2022. Again, Graham
failed to register and appear for the hearing. On August 3, 2022, the Appeal
Tribunal notified Graham that her appeal was dismissed pursuant to N.J.A.C.
1:12-14.4(a).
On August 15, 2022, Graham requested another hearing, explaining she
"failed to attend the telephone hearing because [she] missed the deadline for
registering" as she went to register the Sunday prior to the Monday hearing,
instead of the business day prior, which would have been Friday. She stated
that she left three phone messages, but received no return call.
On October 3, 2022, the Appeal Tribunal denied Graham's request for a
new hearing. In its decision, the Appeal Tribunal relied on N.J.A.C.
1:12-14.4(b). The code provides:
If an appeal tribunal issued an order of dismissal for
non[-]appearance of the appellant, the chief appeals
examiner shall, upon application made by such
appellant, within six months after the making of such
order of dismissal, and for good cause shown, set aside
the order of dismissal and shall reschedule such appeal
for hearing in the usual manner.
[N.J.A.C. 1:12-14.4(b) (emphasis added).]
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The Appeal Tribunal acknowledged that "good cause" is not defined in
N.J.A.C. 1:12-14.4(b) and relied upon N.J.A.C. 12:20-3.1(i), because it defines
"good cause" in a related context. N.J.A.C. 12:20-3.1(i) provides:
A late appeal shall be considered on its merits if it is
determined that the appeal was delayed for good cause.
Good cause exists in circumstances where it is shown
that:
1. The delay in filing the appeal was due
to circumstances beyond the control of the
appellant; or
2. The appellant delayed filing the appeal
for circumstances which could not have
been reasonably foreseen or prevented.
The Appeal Tribunal denied Graham's request to have its previous
decision vacated and schedule a new hearing. The Appeal Tribunal found
Graham was provided with two methods to register for the hearing and she failed
to register. In addition, it determined that Graham "did not provide a reason
why [she] missed the deadline to register for the hearing. . . . [And] ma[de] no
showing [that he]r failure to register for the hearing was due to circumstances
beyond [he]r control or 'which could not have been reasonably foreseen or
prevented,'" (quoting N.J.A.C. 1:12-14.4(b)). The Appeal Tribunal explained
Graham had twenty days to appeal to the Board or the decision would become
final.
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On January 31, 2023, Graham appealed the Appeal Tribunal's October 3,
2022 decision to the Board. On July 19, 2023, the Board notified Graham her
appeal was under consideration. The Board advised that "if the appeal [wa]s
timely, the Board w[ould] evaluate the entire record," including any evidence
that Graham may provide.
On July 26, 2023, Graham wrote to the Board and explained the history
regarding her application for unemployment benefits. Graham requested a
recalculation of her unemployment benefits; an explanation as to why she owed
a refund; and forgiveness of any amount owed, explaining she was under
"financial hardship."
On March 27, 2024, the Board issued its final decision, dismissing the
appeal. The Board stated "that the appeal was filed late, in that it was filed
subsequent to the expiration of the statutory period of twenty days from the date
of mailing of the Appeal Tribunal decision," relying on N.J.S.A. 43:21-6(c); and
there was no good cause shown to justify the late filing, relying on N.J.A.C.
12:20-4.1(h).
Graham appeals from the Board's March 27, 2024 final decision. She
claims a lack of understanding as to why unemployment is seeking a refund and
believes unemployment may owe her funds. Further, Graham states she "had no
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knowledge that [she] was being overpaid" or that she "certifi[ed] incorrectly."
Graham also asserts that the Division "failed to communicate and provide
documentation . . . and . . . left [her] confused." She requests we dismiss the
matter and direct the Division to issue her a refund.
"We review a decision made by an administrative agency entrusted to
apply and enforce a statutory scheme under an enhanced deferential standard."
E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493
(2022). Accordingly, "we will disturb an agency's adjudicatory decision only
upon a finding that the decision is 'arbitrary, capricious or unreasonable,' or is
unsupported 'by substantial credible evidence in the record as a whole.'"
Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div.
2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The
burden to show an agency's abuse of discretion "is on the challenger." Parsells
v. Bd. of Educ. of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022), aff'd
as modified, 254 N.J. 152, 168 (2023).
In determining whether agency action is arbitrary,
capricious, or unreasonable, a reviewing court must
examine:
(1) [W]hether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law;
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(2) whether the record contains substantial
evidence to support the findings on which
the agency based its action; and
(3) whether in applying the legislative
policies to the facts, the agency clearly
erred in reaching a conclusion that could
not reasonably have been made on a
showing of the relevant factors.
[Sullivan, 471 N.J. Super. at 156 (alteration in original)
(quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
Moreover, "we defer to an agency's expertise." Ibid. "[W]here there is
substantial evidence in the record to support more than one regulatory
conclusion, 'it is the agency's choice which governs.'" Murray v. State Health
Benefits Comm'n, 337 N.J. Super. 435, 442-43 (App. Div. 2001) (quoting In re
Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div. 1990)). Under those
circumstances, "we cannot substitute our judgment for that of the agency, even
if we would have decided the case differently." Id. at 443.
Applying this well-established law, we conclude Graham fails to sustain
her burden to establish the Board's decision was arbitrary, capricious, or
unreasonable. Instead, the evidence in the record reveals that she was provided
multiple opportunities to appear and present evidence regarding her claim and
failed to do so. Moreover, she failed to timely file an appeal of the October 3,
2023 decision, which led to the Board's March 27, 2024 final decision to dismiss
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the appeal under the statute and code and offered no evidence of good cause to
allow a late filing. Under these circumstances, the Board's decision to deny her
appeal was not arbitrary, capricious, or unreasonable.
To the extent we have not addressed Graham's remaining arguments, we
conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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