Board of Review Decision 352-MNNR-FJ36

The claimant was not in unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r), while on a medical leave of absence, because she was not capable of performing any work. Further, the claimant was not in partial unemployment while working part-time for the employer, because she was fully employed at the level of hours she was capable of working due to a hand injury.

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Issue ID: 352-MNNR-FJ36

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and affirm.

The claimant filed a claim for unemployment benefits with the DUA, effective December 22, 2024, which was denied in a determination issued on July 24, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the claimant, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on September 20, 2025. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant was not in unemployment during the period in which she was not capable of working full-time and, thus, was disqualified under G.L. c. 151A, §§ 29(a) and 1(r). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal, we remanded the case to the review examiner to obtain additional evidence pertaining to the claimant’s work schedule and capability. Only the claimant attended the remand hearing. Thereafter, the review examiner issued her consolidated findings of fact. Our decision is based upon our review of the entire record. 

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant was not in unemployment when she was not capable of working full-time, is supported by substantial and credible evidence and is free from error of law. 

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment are set forth below in their entirety:

1. The claimant worked as a cook for the employer, a food services company, providing food services to a college. The claimant began working for the employer in 2009. She worked 8:30 a.m. – 3:00 p.m., Monday through Thursday and 8:30 a.m. – 9:45 p.m. on Fridays, or 39.25 hours per week. The claimant earned $21.89 per hour.
2. The employer defines full-time employment as thirty-five or more hours per week.
3. In 2023, the claimant occasionally worked some Saturdays when a coworker was out on maternity leave. She has not worked on Saturdays since 2023.
4. The claimant’s supervisor was the employer’s client’s executive chef.
5. The claimant was aware of the employer’s client’s human resources representatives for the employer.
6. On 12/13/2024, the employer “laid off” the claimant during the period beginning 12/14/2024 “Due to the school schedule” for winter break. The claimant was expected to return to work for the employer on 1/13/2025.
7. The claimant was diagnosed with arthritis. She sought care from an orthopedic surgeon and was prescribed medication.
8. During the week beginning 12/15/2024, the claimant’s orthopedic surgeon recommended surgery that was scheduled for 12/24/2024.
9. During the week beginning 12/15/2024, the claimant called her supervisor and advised the supervisor that she was undergoing surgery on 12/24/2024 and would be unable to return to work on 1/13/2025.
10. The employer approved the claimant’s medical leave for the period beginning 12/16/2024 through 3/10/2025.
11. On 12/22/2024, the claimant filed a claim for unemployment benefits with the Department of Unemployment Assistance (DUA), effective 12/22/2024.
12. The DUA determined the claimant’s weekly benefit rate to be $438.00 and her earnings disregard as $146.00.
13. The claimant filed weekly certifications for the weeks ending 12/28/2024 through 7/26/2025.
14. The claimant underwent surgery on her right hand on 12/24/2024. The medical provider issued a note to the claimant stating that she would be unable to return to work until 2/4/2025.
15. Following her surgery, the claimant emailed the doctor’s note to her supervisor. The supervisor replied “Okay”. The employer’s supervisor indicated that the employer was keeping the claimant’s job available for her return.
16. Since the claimant’s surgery, she has attended therapy on her right hand, three to four times per week.
17. During the period beginning 12/26/2024 through 1/1/2025, the employer paid the claimant vacation pay in the gross amount of $950.75, and paid time off in the gross amount of $87.56. The claimant performed no work for the employer during this period.
18. On 1/22/2025, the claimant sought follow-up care from her medical provider who gave the claimant a medical note stating she “may not return to work” and has a follow-up appointment in four to six weeks.
19. On some unknown date, the claimant spoke to the employer’s human resources representative. The human resources representative advised the claimant to “come back to work” when the claimant felt better.
20. On 3/10/2025, the claimant returned to work for the employer. She worked a reduced schedule. The employer provided the claimant with an assistant to perform some of her job duties.
21. During the week of 3/9/2025 through 3/15/2025, the claimant worked about twenty-six hours.
22. During the week of 3/16/2025 through 3/22/2025, the claimant worked about twenty-six hours.
23. During the period beginning 3/10/2025 and through 3/20/2025, the claimant worked 52.2333 hours for the employer and earned gross wages in the amount of $1,143.39.
24. The claimant found it difficult to perform her job duties due to her right hand pain.
25. The claimant last performed work for the employer on 3/20/2025.
26. Beginning on 3/21/2025 and through 5/10/2025, the claimant did not accept available work from the employer because of her hand pain.
27. Beginning on 5/10/2025, the employer had no work available for the claimant due to the school closing for the summer break. The employer notified the claimant of a return-to-work date on 9/1/2025.
28. During the period beginning 5/15/2025 through 5/21/2025, the employer paid the claimant vacation pay in the gross amount of $302.45. The claimant performed no work for the employer during this period.
29. The employer issued a check for the period beginning 6/26/2025 through 7/2/2025 in the gross amount of $299.89. 
30. In August, 2025, the claimant’s medical provider cleared the claimant to return to work with no restrictions.
31. On 9/1/2025, the claimant returned to work for the employer.
32. On 9/1/2025, the claimant was capable and available to perform her full-time work duties.
33. During the period beginning 9/1/2025 through 9/13/2025, the employer reduced the claimant’s work schedule by three to four hours each week due to the business needs of the employer.
34. During the week beginning 9/14/2025 and subsequent weeks thereafter, the claimant returned to work full-time for the employer.
35. The claimant continues to work for the employer.
36. On 7/24/2025, the DUA sent the claimant a Notice of Disqualification within Section 29(a) and 1(r) of the Law for the period beginning 12/22/2024 and through 4/5/2025. The claimant appealed this determination.

Credibility Assessment:

The claimant participated in both hearings. As the employer failed to provide any direct testimony, it is determined that the claimant’s testimony is credible. During the first hearing, the claimant stated that she returned to work on a reduced schedule beginning on 3/10/2025. She added that she increased her hours every few weeks thereafter until on or about 7/13/2025, when she returned to working her full-time hours for the employer. During the remand hearing, the claimant offered testimony that was inconsistent from the first hearing.

The claimant affirmed that she returned to work for the employer on 3/10/2025. The claimant added that during the almost two-week period beginning 3/10/2025 and through 3/20/2025, she worked about 52.23 hours for the instant employer, as corroborated by the claimant’s earnings statements. She stated that following the first two weeks ending on 3/20/2025, she did not return to work for the employer until 9/01/2025. She indicated that her hand pain prevented her from accepting available work from the employer. The claimant stated that she last worked for the employer on 3/20/2025, remained out of work for the remainder of March, April, and the beginning of May, 2025. She added that the employer closed for the summer beginning on 5/10/2025 and there was no available work. The claimant further testified that even if the employer had not been closed for the summer, she would have been unable to accept available work until August, 2025 due to her hand injury. She attested that she continues to experience pain and numbness in her hand. However, the claimant affirmed that in August, 2025, she spoke to her medical provider and stated that she needed to return to work due to financial reasons, and the medical provider agreed that she could, adding that the medical provider advised her to contact the provider for any issues with her injured hand. The claimant offered further testimony that she returned to work for the employer on 9/1/2025 with no restrictions. She added that for the first two weeks beginning on 9/1/2025, the employer reduced her schedule by three to four hours each week due to a business decision on the part of the employer. She stated that she has worked a full-time schedule since 9/15/2025.

The claimant provided earnings statements for the weeks beginning 12/26/2024 through 1/1/2025, 5/15/2025 through 5/21/2025, and 6/26/2025 through 7/2/2025 for the hearing. She stated that she provided the department with all of her earnings statements for the relevant period. During the remand hearing, the claimant directly attested that she performed no work for the employer for these weeks. The claimant testified that the earnings statements were for vacation pay and accrued personal time. A review of the earnings statements for 12/26/2024 through 1/1/2025 and 5/15/2025 through 5/21/2025 corroborates the claimant’s testimony. However, the earnings statement for 6/26/2025 through 7/2/2025 suggests that the employer paid the claimant for 13.7 hours of work in the gross amount of $299.89. The claimant vehemently denied performing work for the employer during the period beginning 6/26/2025 through 7/2/2025. Moreover, the claimant testified that the employer did not offer any available work during the period beginning 6/26/2025 through 7/2/2025 due to the closure of the school where the claimant performed her job duties. She added that she believed the employer paid her accrued personal time off during the period of 6/26/2025 through 7/2/2025. As the employer was not present for the hearing to clarify, the claimant’s testimony is deemed credible.

Although the claimant provided candid testimony during both hearings, she was unable to recollect specific details related to her medical leave, resulting in inconsistent and illogical testimony when compared to the documents on the record. Nonetheless, the findings of fact have been amended to reflect additional evidence offered during the remand hearing.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s consolidated findings of fact and deems them to be supported by substantial and credible evidence. 

The issue before the Board is whether the claimant was in unemployment within the meaning of the Massachusetts Unemployment Insurance statute. Specifically, we analyze the claimant’s eligibility for benefits under G.L. c. 151A, § 29(a) and (b), which authorize benefits be paid only to those in “total unemployment” or “partial unemployment.” These terms are in turn defined by G.L. c. 151A, § 1(r), which provides, in relevant part, as follows: 

(1) “Partial unemployment”, an individual shall be deemed to be in partial unemployment if in any week of less than full-time weekly schedule of work he has earned or has received aggregate remuneration in an amount which is less than the weekly benefit rate to which he would be entitled if totally unemployed during said week. . . . 

(2) “Total unemployment”, an individual shall be deemed to be in total unemployment in any week in which he performs no wage-earning services whatever, and for which he receives no remuneration, and in which, though capable and available for work, he is unable to obtain any suitable work.

The claimant had surgery on her right hand on December 24, 2024, and was approved for medical leave while she recovered from the surgery. Consolidated Findings ## 10 and 14. She returned to work on March 10, 2025. Consolidated Finding # 10. An employee is not disqualified from receiving benefits if she is temporarily disabled from doing the employer's work while capable of and available to do other work and making serious efforts to find other work. See Dir. of Division of Employment Security v. Fitzgerald, 382 Mass. 163–164 (1980). Here, there is no indication in the record that the claimant, who worked as a cook for the employer, was capable of performing other work while recovering from her hand surgery. The claimant has, therefore, not established that she was in unemployment while out on leave between December 24, 2024, and March 9, 2025. 

Although the employer laid off the claimant during winter break, between December 13, 2024, and January 13, 2025, our determination of her eligibility as of December 24, 2024, does not change. See Consolidated Finding # 6. Regardless of whether the employer offered work to the claimant, the claimant must show that she was capable of and available for work to be eligible for benefits under G.L. c. 151A, § 1(r). As explained, the claimant did not establish that she was capable of or available for any work between December 24, 2024, and March 9, 2025.

After returning to work on March 10, 2025, the claimant worked part-time hours during the weeks ending March 15, 2025, and March 22, 2025. Consolidated Findings ## 20–22. Because the claimant worked part-time hours during the weeks ending March 15^th and March 22^nd, she was not in total unemployment during these two weeks. The next question is whether she was in partial unemployment and entitled to benefits during this period.

There are a limited number of circumstances set forth under the DUA regulations at 430 CMR 4.45, that permit a claimant to restrict her availability to part-time work and remain eligible for benefits. One such circumstance is a disability that prevents an individual from working full-time but does not effectively remove her from the labor force. Specifically, 430 CMR 4.45(3), provides:

Notwithstanding the provisions of 430 CMR 4.45(1), an otherwise eligible individual who does not meet the requirements of 430 CMR 4.45(1) may limit his/her availability for work during the benefit year to part-time employment provided, that the individual is:

(a) a qualified individual with a disability;

(b) provides documentation to the satisfaction of the commissioner substantiating an inability to work full-time because of such disability; and

(c) establishes to the satisfaction of the commissioner that such limitation does not effectively remove himself/herself from the labor force.

Further, 430 CMR 4.45(4), states, in relevant part:

Any individual who meets the requirements of either 430 CMR 4.45(1) or (3) must be actively seeking and available for suitable work to be eligible for benefits. An offer of employment will not be considered an offer of suitable employment and the individual will not be disqualified for refusing such offer where such offer: . . . 

(b) in the case of an individual who meets the requirements of 430 CMR 4.45(3) requires greater hours than the individual is capable of working.

The consolidated findings suggest that the claimant may meet the requirements of 430 CMR 4.45(3) due to her hand injury disability. During the weeks ending March 15, 2025, and March 22, 2025, she performed approximately 26 hours of work during each of these two weeks. The consolidated findings indicate that such hours were all that her disability allowed her to work. See Consolidated Findings ## 20–22, and 24.

Having obtained suitable work for all of the hours that she was capable of working during those weeks, the question is whether the claimant is still entitled to collect unemployment benefits. The regulations at 430 CMR 4.45(3) and (4), do not directly address this. 

However, the concept is addressed in 430 CMR 4.45(2), which states:

An individual who falls under the provisions of 430 CMR 4.45(1)(b) who obtains suitable part-time employment during the benefit year shall be determined not to be in partial unemployment and will not be eligible to receive partial unemployment benefits while so employed in the benefit year. 

The regulation at 430 CMR 4.45(1)(b) pertains to individuals who are permitted to restrict their availability to part-time work where “the reasons for leaving his or her employment were for such an urgent, compelling, and necessitous nature as to make his or her separation involuntary; and establishes to the satisfaction of the commissioner that the same or related urgent, compelling, and necessitous reasons require the individual to limit availability for work during the benefit year to part-time employment.”  

We believe that the principle set forth in 430 CMR 4.45(2), applies to individuals who are permitted to limit their availability due to a disability pursuant to 430 CMR 4.45(3). We say this because, once an individual with a disability finds suitable part-time work at the level of hours she is capable of working, she is fully employed. We can reasonably infer that she is no longer seeking more hours. Therefore, the individual does not meet the actively seeking work requirement of 430 CMR 4.45(4). For this reason, the claimant in the present appeal was not in partial unemployment during the weeks ending March 15, 2025, and March 22, 2025.

Although the record contains conflicting evidence, the review examiner found that the claimant did not perform work for the employer between March 21, 2025, and August 31, 2025. Consolidated Findings ## 25 and 31. She did not work during this period because of her hand pain, but also because the employer was closed for the summer beginning on May 10, 2025. Consolidated Findings ## 26–27. Again, regardless of whether the employer offered work to the claimant, G.L. c. 151A, § 1(r), requires the claimant to show that she was capable of and available for work. Here, she was not medically cleared to work until an unknown date in August of 2025. See Consolidated Finding # 30. Because nothing in the record indicates that the claimant was medically capable of performing any other type of work during this period, she has not established that she was capable of working between March 21, 2025, and August 31, 2025. 

We, therefore, conclude as a matter of law that the claimant was not in unemployment within the meaning of G.L. c. 151A, §§ 29 and 1(r). 

The review examiner’s decision is affirmed. The claimant is denied benefits for the week beginning December 22, 2024, and for subsequent weeks that she requested benefits under her 2024-01 claim.

Boston, Massachusetts                                              Date of Decision – April 3, 2026

1. The failure of another party to participate in the hearing is not a reasonable basis to accept testimony as credible, particularly where the witness provides inconsistent testimony. Nonetheless, this portion of the credibility assessment does not affect our decision. 
2. According to the DUA’s electronic record-keeping system, the claimant did not request benefits beyond the week ending July 26, 2025, on her 2024-01 claim. Therefore, a denial of benefits beyond July 26, 2025, will not affect her. See Consolidated Finding # 13. 

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

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