Board of Review Decision 352-N46L-7PF3

The review examiner incorrectly used the claimant’s non-liquid assets and her wife’s gross income in denying an overpayment waiver. Calculating the claimant’s wife’s net earnings from the information on her paystubs, and correctly accounting for all their monthly expenses, shows that their monthly income is insufficient to meet their monthly expenses. The claimant is entitled to a waiver of the overpayment pursuant to G.L. c. 151A, § 69(c).

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Issue ID: 352-N46L-7PF3

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 a waiver of overpaid unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

The claimant filed a claim for unemployment benefits with the DUA, effective June 15, 2025, and was initially awarded benefits. However, the DUA subsequently determined that these benefits were overpaid in a determination issued on July 8, 2025. The claimant applied for a waiver of recovery of the overpayment, which the DUA denied in a determination issued on September 30, 2025. The claimant appealed the waiver determination to the DUA hearings department. Following a hearing on the merits attended by the claimant, the review examiner affirmed the agency’s initial determination and denied the claimant’s request for a waiver in a decision rendered on January 16, 2026. We accepted the claimant’s application for review.

The review examiner determined that, although the claimant was not at fault, recovery of the overpayment would not be against equity and good conscience or defeat the purpose of benefits otherwise authorized, and, thus, the claimant was not entitled to a waiver of overpayment pursuant to G.L. c. 151A, § 69(c). 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 about the claimant’s household earnings and expenses. The claimant attended the remand hearing. Thereafter, the review examiner issued his 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 recovery of the overpayment would not defeat the purpose of benefits otherwise authorized pursuant to G.L. c. 151A, § 69(c), 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 applied for unemployment benefits and was determined to have a benefit year beginning June 15, 2025. 
2. After receiving benefits of $4,304, the claimant was determined to be monetarily ineligible because she did not have payments of three times her benefit rate in the base period of her new claim. She was determined to be overpaid. The claimant accepted benefits believing that she was entitled to them. 
3. The claimant last worked in early 2024 for a solar panel company earning an annual salary of approximately $95,000. In April 2026 she started her own pottery business but has no income. 
4. The claimant is married. Both the claimant and her wife contribute to household income and expenses. They have a three-year-old child. 
5. The claimant’s wife works as a court officer for Massachusetts. She has gross earnings of $8,784 each month. 
6. The claimant has savings of approximately $8,000. She has checking accounts with approximately $1,230. 
7. The claimant and her wife have a home with an assessed value of $380,000. The claimant has a 401(K) account with a value of $5,750. She owns stocks valued at approximately $9,000. The claimant owns a 2014 Jeep Wrangler with a value of $10,000. The claimant’s wife owns a 2021 VW Atlas with a value of $20,000. 
8. The claimant’s total income and assets are $442,763. 
9. The claimant’s monthly expenses are as follows:

Mortgage (including property taxes and insurance)	$1,713
Food	1,000
Utilities	750
Clothing	200
Work related travel	200
Medical	200
Preschool	560
Personal Hygiene, Household cleaning	200
Pets and pet care	100
Payroll Taxes	1,587
Health Insurance	597
Automobile Insurance	166
Credit Card Minimum Monthly Payment	235
Total	$7,508

10. The claimant has a Chase credit card with a balance of $376 and a minimum monthly payment of $35. 
11. The claimant has a USAA credit card with a zero balance. 
12. The claimant’s wife has a Discover credit card with a balance of $5,385 and a minimum monthly payment of $55. 
13. The claimant’s wife has a Chase credit card with a balance of $10,552 and a minimum monthly payment of $106. 
14. The claimant’s wife has a Southwest credit card with a balance of $3,900 and a minimum monthly payment of $39. 
15. The claimant owes $203,000 on her mortgage. 
16. The claimant’s total expenses and liabilities are $230,721 
17. The claimant used her unemployment benefits, now determined to be overpaid, to pay ordinary living monthly bills and expenses. 
18. While receiving unemployment benefits, the claimant did not give up any right to other rights or benefits. 

Credibility Assessment: 

The claimant and her wife made admissions against their interest, such as providing details of their investment accounts and the value of their home. Therefore, the testimony regarding their current credit card balances and food expense is accepted as credible. It is also reasonable that feeding a family of three is closer to $1,000 than $750. The expense for their pets was newly added in because there was no testimony about this expense at the prior hearing. The expense of $100 per month for their pets is also reasonable and credible. They could not provide minimum monthly payment information for three of their credit cards. Since one of the unknown minimum monthly payments was for an Amazon Chase credit card, the JP Morgan Chase website was consulted. It states they multiply their member’s balances by 1%. This percentage was also used to calculate the two other unknown minimum payments.

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. After such review, the Board adopts the review examiner’s findings of fact except as follows. We reject the portion of Consolidated Finding 9 that states that the claimant’s monthly utility expenses are $750 as inconsistent with the uncontested evidence in the record. We further reject the portion of Consolidated Findings 13 that states that the minimum monthly payment is $106 and the portion of Consolidated Finding 14 that states that the minimum monthly payment is $39. The review examiner’s credibility assessment shows that these figures were calculated by improperly relying on information that was outside the record. See G.L. c. 151A, § 39(c). In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant is not entitled to an overpayment waiver. 

The claimant’s eligibility for a waiver is governed by G. L. c. 151A, § 69(c), which provides, in relevant part, as follows:  

The commissioner may waive recovery of an overpayment made to any individual, who, in the judgment of the commissioner, is without fault and where, in the judgment of the commissioner such recovery would defeat the purpose of benefits otherwise authorized or would be against equity and good conscience. 

As the claimant was not determined to be at fault for the overpayment, we must consider whether the claimant has established that she is otherwise eligible for a waiver because the recovery of the overpaid benefits would either defeat the purpose of benefits otherwise authorized or would be against equity and good conscience. 

The claimant had not relinquished a valuable right based upon her receipt of unemployment insurance benefits during the period at issue. Consolidated Finding 18. Therefore, the recovery of the overpayment is not against equity and good conscience. See 430 CMR 6.03. 

The phrase, “defeat the purpose of benefits otherwise authorized” is defined under the DUA regulation at 430 CMR 6.03, which provides as follows:  

Defeat the purposes of benefits otherwise authorized means that recovery of the overpayment would deprive the overpaid claimant, or individuals dependent on the claimant, of income required for ordinary and necessary living expenses. This depends upon whether the overpaid claimant or his dependents have income or financial resources sufficient for more than ordinary and necessary needs, or are dependent upon all current income for such needs. Ordinary and necessary living expenses include, but shall not be limited to:  

 fixed living expenses, such as food and clothing, rent, mortgage payments, utilities, accident and health insurance, taxes, and work-related transportation expenses;  

2. medical and hospitalization expenses;  
3. expenses for the support of others for whom the individual is legally responsible;  
4. other miscellaneous expenses which may reasonably be considered as part of an individual’s necessary and ordinary living expenses.  

The review examiner denied the claimant a waiver because he concluded that the claimant’s household monthly income and assets were greater than her monthly ordinary and necessary living expenses. The language used in the Conclusions and Reasoning section of his decision suggests that the review examiner considered all of the claimant’s assets, including her 401(k) and the value of her home. It is well settled that non-liquid assets are not to be included in determining whether the claimant has sufficient income and resources to meet ordinary living expenses. See, e.g., Board of Review Decision 0016 7937 34 (Mar. 9, 2016) (in denying the waiver, the review examiner erroneously considered all of the claimant’s assets, including non-liquid assets such as the value of his home and 401(k)). 

As to income, the review examiner also erred in utilizing the claimant’s wife’s gross monthly earnings instead of her net monthly earnings when conducting his analysis. SeeConsolidated Finding 5. Although he attempted to account for payroll tax and health insurance deductions in Consolidated Finding 9, the numbers used in this finding do not accurately reflect the information in the claimant’s wife’s paystubs, which were entered into evidence as exhibits 17, 19 and 20. Combining the claimant’s wife’s net earnings from the three paystubs and dividing that number by the six-week period covered in the three paystubs yields a net weekly income of approximately $1,287.38. We multiply this amount by 4.3, which is the average number of weeks in a month, to obtain a net monthly income of $5,535.73. Because the claimant does not have any additional income, her net monthly household income is $5,535.73. Consolidated Finding 3.

We next consider the claimant’s ordinary and necessary monthly household expenses. As discussed above, the line item pertaining to utilities in Consolidated Finding 9 does not accurately reflect the evidence of the claimant’s total utility expenses including electricity, heat, cellular telephone, and internet. The claimant’s telephone bill, internet bill, and electricity bill, which were admitted as Exhibits 14, 15, and 16 respectively, show that the monthly cost of these three items is approximately $661. Additionally, the claimant and her wife provided uncontested testimony that they purchase oil for heating bi-monthly, and their most recent oil bill was approximately $700. From this, we can infer that the clamant pays an additional $350 monthly for heating. Based on this evidence, the claimant’s household utilities expenses are approximately $1,011 per month. Further, the claimant and her wife confirmed that the minimum monthly payments for the Chase credit card with a balance of $376 (Chase card A) and the Discover credit card with a balance of $5,385 (Discover card) totaled $90 per month. Consolidated Findings 10 and 12. Thus, excluding the improperly calculated deductions in Consolidated Finding 9, the uncontested evidence in the record shows that the claimant’s ordinary and necessary household expenses are approximately $5,440 per month.

While this figure suggests that the claimant’s net monthly household income exceeds her ordinary and necessary monthly expenses by approximately $95.73, we are aware our calculations do not account for all outstanding credit card payments. The review examiner was unable to obtain specific information about the minimum monthly payments on the Chase credit card with a balance of $10,552 (Chase card B), and the Southwest credit card (Southwest card) with a balance of $3,900. However, because the claimant and her wife both confirmed that they were making payments towards the outstanding balances on both cards, those payments are part of the claimant’s ordinary and necessary living expenses. 

The combined balance on Chase card B and the Southwest card ($10,552 + $3,900 = $14,452) is nearly two and a half times more than the combined balance of Chase card A and the Discover card ($376 + $5,385 = $5,761). Based on this information, we can reasonably infer that the minimum monthly payments for Chase card B and the Southwest card are substantially higher than the combined $90 minimum monthly payments for Chase card A and the Discover card. Accounting for these additional payments, the claimant has presented substantial and credible evidence showing that her net monthly household income is insufficient to meet her monthly household expenses. 

We, therefore, conclude as a matter of law that the claimant has met her burden to show that recovery of the overpayment would defeat the purpose of benefits otherwise authorized within the meaning of G.L. c. 151A, § 69(c). 

The review examiner’s decision is reversed. The claimant’s request for a waiver of recovery of overpaid benefits is granted. The claimant is not liable to repay $4,304.00 in overpaid benefits. 

Boston, Massachusetts                                              Date of Decision - May 21, 2026

1. While not explicitly incorporated into the review examiner’s findings, Exhibits 17, 19, and 20 are part of the unchallenged evidence introduced at the hearing and placed in the record, and they are thus properly referred to in our decision today. SeeBleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. Exhibits 14, 15, and 16, as well as this portion of the claimant’s and her wife’s testimony, are also part of the unchallenged evidence introduced at the hearing and placed in the record.

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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LSW/rh