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63. How Do You Request Review by the Board of Review?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

The decision of the review examiner of the Hearings Department can be appealed administratively by either party to the Board of Review, a three‑member independent appellate review board within DUA. The current Chair of the Board is Paul T. Fitzgerald, and the two other members are Charlene Stawicki and Michel J. Albano.

The appeal to the Board, in the form of an application for further review, must be filed or postmarked within 30 days of the date the DUA mailed the review examiner’s decision. G.L. c. 151A, § 40. See https://www.mass.gov/how-to/file-an-appeal-with-the-board-of-review. The regulatory "good cause" provisions do not apply to allow a late appeal to the Board. The Supreme Judicial Court upheld the postmark rule in 801 CMR 1.04(4) to govern the timeliness of applications to the Board under G.L. c. 151A, § 40Pavian, Inc. v. Hickey, 452 Mass. 490, 496, 895 N.E. 2d 480, 486 (2008).  

One may mail, fax, or hand-deliver appeals to: Board of Review, 19 Staniford Street, 4th floor, Boston, MA 02114, Fax #: 617-727-5874; or submit them through UI Online by clicking: View and Maintain Account Information → Monetary and Issue Summary → Issue ID → Appeal Issue. However, once submitted online, it is difficult to find.

You may obtain a copy of the hearing CD from the DUA Hearings Department for $7.00 (free for clients eligible for legal services).

After receiving an application for review, the Board has 21 days to decide whether or not to accept review. G.L. c. 151A, § 41(a). Once an appeal is filed, the case is assigned to a review examiner at the Board, who reviews the file, listens to the hearing CD, writes a summary, and makes a recommendation to the Board on whether to accept the application for review. The non-appealing party does not receive notice of a pending Board of Review appeal until the Board decides whether to accept the appeal.

Advocates for the claimant should submit a memorandum in support of the application for review, along with the appeal. If the original decision is not based on substantial evidence in the record, or if the case presents an error of law or a novel issue of law, this should be pointed out to the Board. G.L. c. 151A, § 41(b). Additionally, citing to prior Board of Review decisions is persuasive, especially those decisions that the Board has identified as “key decisions.” Given the volume of appeals, memos that are short and to the point are well-received and there is no necessity to repeat the facts.

Note: If the Board of Review makes no decision within the 21‑day period, the case is deemed denied on the twenty‑first day after the date of appeal. (This rarely happens). The review examiner’s decision is the final DUA decision, and the Board's inaction after 21 days, or the Board's decision to deny the appeal starts the appeal period for judicial review; the case must be filed in District Court within 30 days thereafter. G.L. c. 151A, § 41(a).

If the Board accepts review, it may:

  • review the case on the record and make a decision;
  • remand the case to the DUA Hearings Department for the taking of additional evidence or the making of subsidiary findings or for a de novo hearing; or
  • take evidence at a hearing before the Board and make a decision.

G.L. c. 151A, § 41(b).

A Suffolk Superior Court ordered the Board to decide all cases coming before it, including those cases remanded to the DUA Hearings Department for additional evidence, within 45 days after the acceptance for review. Burke v. Nordberg, Suffolk C.A. 92-7030-C (Cratsley, J.) (12/18/92).  Additionally the State Auditor's 2016 UI Special Commission Report, available at https://www.mass.gov/media/1241731/download, recommended that the Director establish a method for prioritizing decisions (by determinations, Hearings Department and Board of Review) for claimants facing financial hardships while waiting for initial benefits or appealing denials.  The Commission recommended that a claimant’s receipt of a needs-based benefit (e.g., food stamps) “shall be a sufficient but not necessary method of proof” of such hardship, and that other indicia of hardship may also be considered (e.g., imminent eviction, threats of wage garnishment due to debts, unmet medical or other critical needs of the claimant or claimant’s family due to delay of the receipt of UI benefits).  We recommend that a claimant’s advocate call the Board of Review at 617-626-6400 to request an expedited decision where the claimant is facing a financial hardship. If decision is still not forthcoming after a hardship request, advise the claimant to contact her state representative or state senator for assistance in obtaining a decision. 

The Board of Review may make independent findings of fact only in cases where it opts to conduct its own evidentiary hearing. In Boston Mutual Life Ins. Co. v. Director of the Div. of Employment Security, 384 Mass. 807, 427 N.E.2d 748 (1981), the SJC noted that in those cases where the Board does not conduct an evidentiary hearing of its own, it is limited by the terms of G.L. c. 151A, § 41(b) to inquiring whether the review examiner’s findings of fact are supported by substantial evidence; see also Director of the Div. of Employment Sec. v. Fingerman, 378 Mass. 461, 463, 392 N.E.2d 846 (1979).

In passing on questions of law, mixed questions of law and fact, or application of law to facts found, however, the scope of the Board’s review is de novo. In Fingerman, the court stated that, when addressing questions that are not purely factual, “if it were left to final decision by the several review examiners, consistent application of the statute to persons similarly situated would be impaired. Application of law to fact has long been a matter entrusted to the informed judgment of the board of review.” 378 Mass. at 463-64 (citing Garfield v. Director of the Div. of Employment Security, 377 Mass. 94, 95, 384 N.E. 2d 642 (1979)).  Decisions of the Board of Review are binding precedent with respect to the DUA. Dicerbo v. Nordberg, No. 93-5947B, 1998 WL 34644, *5-*6 (Mass. Super. 1998). For this reason, advocates are advised to research the Board's Key Decisions on the issues relevant to their client's case.

An issue that comes up often is how to deal with a review examiner's adverse credibility findings on appeal to the Board or to Court as the responsibility for deciding credibility and the weight to be given to conflicting testimony rests with the  review examiner as the trier of fact.  Nantucket Cottage Hosp. v. Director of the Div. of Employment Security, 388 Mass. 1006, 446 N.E. 2d 75 (1983).

In confronting an adverse credibility finding, advocates should determine whether the finding is supported by substantial evidence in the record which requires an inquiry “upon consideration of the entire record.”  G.L. c. 30A, § 14(7). Under this standard, the Supreme Judicial Court has noted that “we are not required to affirm the board merely on a finding that the record contains evidence from which a rational mind might draw the desired inference.” New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466 (1981).  Courts must inquire as to whether a reasonable mind could accept an agency’s conclusion based on the evidence in the record, and should consider the entire record for evidence that substantially tends toward the opposite conclusion.  Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass 593, 595 (1974); Allen of Michigan v. Deputy Director of the Div. of Employment & Training, 64 Mass. App. Ct. 370 at 378, 833 N.E.2d 627 at 634 (2005). 

Good examples of considering the entire record are found in many decisions. See, e.g., BR-0029-6022 98 (8/30/10) (rejecting review examiner's finding of misconduct based on a credibility assessment that failed to weigh other material evidence); BR-110773 (1/27/10) (Key) (holding that even if the claimant’s credibility was in doubt, the review examiner may not ignore competent medical evidence that the claimant’s medical condition rendered him to either perform or to preserve his job.) Especially in a discharge case where the burden of proof falls on the employer, rejecting the claimant's testimony as not credible does not suffice to fulfill the employer's burden to prove that the claimant willfully disregarded the employer's interests. Magbagbeola v. Director of the Div. of Unemployment Assistance, 76 Mass. App. Ct. 1119, 923 N.E.2d 122, 123 (2010).

For an insightful article about how credibility determinations are inappropriately influenced by narrative styles that reflect educational, cultural and linguistic influences, see 14 Harv. Latino L. Rev. 155, Narrative Preferences and Administrative Due Process, Spring 2011.

Although the Board has traditionally not held many hearings, recently a GBLS case was remanded from the District Court to the Board rather than to the Hearings Department which held its own de novo hearing. See Curtis v. Commissioner of the Div. of Unemployment Assistance, 68 Mass. Appt. Ct. 516, 525 (2007) (“… the board may take additional evidence or send this matter back to the review examiner …). The remand order specified that the action be remanded to the DUA Board of Review for a de novo hearing. Advocates wishing a remand to the Hearings Department should ask that this be clearly stated in the Court’s Order. In this particular case, the claimant and employer were questioned by all three Board commissioners and the Board’s staff attorney resulting in a thoughtful opinion reversing the denial of UI.

(A sample appeal letter to the Board is attached as Appendix L.)