SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3110-18

K.H.,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and DENNIS TOWNSHIP

BOARD OF EDUCATION,

Respondents.

____________________________

Submitted January 5, 2021 – Decided April 22, 2021

Before Judges Fisher and Gilson.

On appeal from the Board of Review, Department of 

Labor, Docket No. 33,642.

K.H., appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for 

respondent Board of Review, Department of Labor 

(Sookie Bae, Assistant Attorney General, of counsel; 

Alexis F. Fedorchak, Deputy Attorney General, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.
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Cooper Levenson, PA, attorneys for respondent Dennis 

Township Board of Education (Kasi M. Gifford, on the 

brief).

PER CURIAM

Appellant K.H. appeals from a January 14, 2019 final agency decision by 

the Board of Review (Board), which determined that she was ineligible for 

unemployment benefits for certain periods of time because she was ill and not 

available for work.1 The Board also determined that appellant must reimburse 

$4,716 in benefits she received when she was ineligible. While this appeal was 

pending, the Board advised us that K.H. had died and the issue of repayment "is 

moot." The Board also clarified it would not seek repayment of the $4,716 from 

K.H.'s estate, heirs, or assigns. Both the Board and K.H.'s husband, who is 

representing K.H. on this appeal, requested us to decide whether the Board had 

properly ruled that K.H. was not eligible for benefits beyond the refund period. 

Because the Board's factual findings are supported by substantial evidence and 

its determinations are not an abuse of its discretion, we affirm its decision 

denying unemployment benefits to K.H.

1 The Board's decision depends on a discussion of appellant's medical issues. 

Accordingly, we use initials to protect her privacy interests.
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I.

Appellant worked for a municipal board of education (Employer) for 

approximately twenty years, from 1992 to 2012. She was initially hired as a bus 

driver and later promoted to the position of transportation coordinator.

In 2012, the Employer informed appellant that her employment as 

transportation coordinator would not continue beyond June 30, 2012. Instead, 

the Employer offered appellant employment as a bus driver beginning on July 

1, 2012. The record does not reflect whether appellant formally accepted 

employment as a bus driver. The record does establish that appellant never 

worked as a bus driver for the Employer in 2012. Instead, in June 2012, she 

called out sick and from July 2012 to early November 2012 she took medical 

leave. On November 5, 2012, appellant submitted a letter of resignation to her 

Employer. 

On July 1, 2012, appellant filed a claim for unemployment benefits. She 

received benefits for various weeks in 2012 and 2013. 

In 2014, the assistant commissioner for the Division of Unemployment 

Insurance requested a refund of $3,493 for benefits appellant received in 2013. 

Appellant objected and between 2016 and 2018, a series of hearings were held 
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before the Appeal Tribunal. There were also several appeals to the Board and 

remands to the Tribunal for further hearings.

Eventually, the Appeal Tribunal conducted hearings in 2018 and issued 

its decision on November 9, 2018. By 2018, appellant was unable to testify 

because she was suffering from dementia. Consequently, appellant's husband, 

who was appointed as her attorney-in-fact, testified on her behalf. The husband 

testified that appellant was not able to work in the second half of 2012 because 

of medical issues. Therefore, appellant called in sick and took medical leave. 

The husband also testified that appellant was able to work after May 2013. 

Finally, the husband testified that sometime after 2013, appellant was again 

unable to work due to her mental conditions and he submitted a note from a 

doctor that stated appellant was not able to work since November 2016. 

Based on that testimony, the Appeal Tribunal found appellant was 

ineligible for unemployment benefits from July 1, 2012 through May 4, 2013,

because she was unable to work. See N.J.S.A. 43:21-4(c)(1) and N.J.S.A. 43:21-

19(q). Consequently, the Tribunal held that appellant had to refund $4,716 for 

benefits she received for the weeks of July 7, 2012 through September 1, 2012. 

The Tribunal also found that appellant was available for work from May 

2013 through August 2013, and she was therefore eligible for unemployment 
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benefits during that time. Accordingly, the Tribunal held that appellant did not 

have to refund $3,493 she received in benefits for the weeks of June 8, 2013 

through August 17, 2013.2

Appellant appealed to the Board. In a final decision issued on January 14, 

2019, the Board affirmed the November 9, 2018 decision of the Appeal Tribunal, 

noting one date correction. 

II.

Appellant, through her husband, appeals from the Board's decision. She 

makes two arguments, contending that the Board (1) failed to consider certain 

evidence in finding that she was unable to work from July 2012 through May 

2013; and (2) erred in determining that one of her arguments was self-serving. 

Given our limited standard of review, we are not persuaded by either of these 

arguments and affirm.

To be eligible for unemployment benefits, the claimant must establish that 

she was (1) able to work, (2) available for work, and (3) actively seeking work 

for the period she applied for benefits. N.J.S.A. 43:21-4(c)(1); Ford v. Bd. of 

2 None of the parties explain whether the benefits received in 2013 relate to 

appellant's employment with the Employer. The record also does not clarify that 

issue. Nevertheless, no party challenges that portion of the decision, which was 

adopted by the Board.
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Rev., 287 N.J. Super. 281, 284 (App. Div. 1996). The record establishes that 

appellant was not able to work nor did she seek work during the second half of 

2012. Instead, there is evidence in the record that she called out sick and took 

medical leave. 

While appellant disputes the Board's factual findings, our review is 

limited to consideration of whether there was sufficient credible evidence to 

support those findings. Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997) (quoting 

Self v. Bd. of Rev., 91 N.J. 453, 459 (1982)). Because there is sufficient credible 

evidence in the record to support the Board's factual findings, we are obligated 

to accept them. Ibid. 

Appellant received unemployment benefits during a time when she was 

not able to work and was therefore ineligible for those benefits. Accordingly, 

the Director of the Division of Unemployment and Disability Insurance had the 

authority to seek a refund of those benefits. Howard v. Bd. of Rev., 173 N.J. 

Super. 196, 202 (App. Div. 1980); see also Bannan v. Bd. of Rev., 299 N.J. 

Super. 671, 674 (App. Div. 1997) (citing Fischer v. Bd. of Rev., 123 N.J. Super. 

263, 266 (App. Div. 1973)) ("N.J.S.A. 43:21-16(d) requires the full repayment 

of unemployment benefits received by an individual who, for any reason, 

regardless of good faith, was not actually entitled to those benefits").
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In rejecting appellant's administrative appeal, the Board found that her 

arguments that she was able to work were "self-serving." Appellant takes issue 

with that finding, but again that is simply a dispute of the Board's factual 

findings. The material consideration is that there were sufficient facts 

supporting the Board's finding that appellant was not able to work in the second 

half of 2012 and therefore she was not eligible for unemployment benefits 

during that period. We therefore find no grounds to reverse the Board's 

determinations.

Affirmed.