Board of Review Decision 352-N7KN-L6NT

On September 25, 2025, the claimant mistakenly appealed a monetary determination issued on June 4, 2025, rather than the intended separation determination issued on Septemer 15, 2025. Held she is deemed to have timely filed her separation determination within the time limits set forth under G.L. c. 151A, § 39(b).

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Issue ID: 352-N7KN-L6NT

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 the claimant a hearing on the merits in connection with a prior determination to deny 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 1, 2025. The DUA issued a Notice of Disqualification, dated September 15, 2025, pursuant to G.L. c. 151A, 
§ 25(e)(1), stating that she was ineligible for benefits beginning the week ending June 7, 2025 (separation determination). On November 5, 2025, the claimant appealed the separation determination. On November 6, 2025, the DUA issued a Notice of Disqualification stating that the claimant’ s appeal of the separation determination was untimely (late appeal determination). The claimant appealed this determination to the DUA Hearings Department. Following a hearing on the merits, the review examiner affirmed the agency’s late appeal determination in a decision rendered on January 5, 2025. We accepted the claimant’s application for review.

A hearing on the merits of the separation determination was denied after the review examiner determined that the claimant had not met the criteria for filing a late appeal pursuant to G.L. c. 151A, § 39(b), and 430 CMR 4.15. Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal, as well as information in the DUA’s electronic record-keeping system. 

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant was not entitled to a hearing on the merits because she did not meet the allowable criteria to file a late appeal, is supported by substantial and credible evidence and is free from error of law, where the claimant initially appealed the incorrect determination. 

Findings of Fact 

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

1. The claimant filed a claim for DUA benefits which was to be effective 6/7/25. 
2. The claimant elected to receive electronic correspondence from the Department of Unemployment Assistance (DUA) on her initial claim. 
3. On 9/12/25, the DUA issued the claimant a Notice of Non-Monetary Issue Determination [sic] The Notice read, in relevant part, “If you disagree with this determination, you have the right to file an appeal. Your appeal must be received within 30 calendar days from the issue date of this determination.” 
4. The notice was written in the claimant’s preferred language. 
5. The claimant admitted she read the notice on 9/15/25. 
6. The claimant called DUA numerous times to seek assistance but didn’t file the appeal until 11/5/25. [sic]
7. The claimant appeal [sic] filed on 11/5/25, fifty-four days (54) days after the Notice was issued. The appeal was late.

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 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 findings of fact and deems them to be supported by substantial and credible evidence with the exception of the claim effective date in Finding of Fact 1. The DUA’s electronic record-keeping system shows that the correct effective date is June 1, 2025, not June 7, 2025. 

As discussed more fully below, we disagree with the review examiner’s legal conclusion that the claimant was not entitled to a hearing on the merits of the separation determination. 

The unemployment statute sets forth a time limit for requesting a hearing. G.L. c. 151A, § 39(b), provides, in pertinent part, as follows: 

Any interested party notified of a determination may request a hearing within ten days after delivery in hand by the commissioner’s authorized representative, or mailing of said notice, unless it is determined . . . that the party had good cause for failing to request a hearing within such time. In no event shall good cause be considered if the party fails to request a hearing within thirty days after such delivery or mailing of said notice. . . .

By regulation, the DUA allows appellants to file their appeal beyond 30 days if they meet a narrow set of criteria. See 430 CMR 4.15. 

During the hearing, the claimant testified that she believed that she was appealing the separation determination when she filed the September 25, 2025, appeal. She later realized that she had, in fact, submitted her appeal under another issue (Issue ID 352-MLP8 2HTP), which was a June, 2025, monetary determination. Once she noticed the mistake, she appealed the separation issue on November 5, 2025. See Finding of Fact 6.  We note that the DUA’s record-keeping database shows that the claimant’s statement in the September 25, 2025, monetary determination appeal addresses the substance of the separation determination. 

In addressing similar situations, the Board has declined to penalize a claimant for inadvertently filing an appeal of the incorrect determination, where the record shows that the claimant intended to file an appeal of the correct determination and promptly filed such an appeal upon learning of the mistake. See, e.g., Board of Review Decision N6-H8V4-8KLD (May 19, 2022), and Board of Review Decision 0021 9945 62 (Aug. 21, 2017). 

Based on the claimant’s September 25, 2025, appeal, her testimony, and the information contained in the DUA’s record-keeping database, it is apparent that the claimant intended to appeal the separation determination when she filed her September 25, 2025, appeal. Because that appeal was filed within ten days of the September 15, 2025, separation determination, it was timely pursuant to G.L. c. 151A § 39(b). Consistent with Board precedent, we decline to penalize the claimant for mistakenly appealing the incorrect issue. 

We, therefore, conclude as a matter of law that the claimant is deemed to have timely filed her appeal within the statutory deadline pursuant to G.L. c. 151A § 39(b).

The review examiner’s decision is reversed. The claimant is entitled to a hearing on the merits of the disqualifying separation determination, dated September 15, 2025, in Issue ID 352-MN3P-MK5P.

Boston, Massachusetts                                              Date of Decision – April 7, 2026

1. The claimant’s testimony in this regard, while not explicitly incorporated into the review examiner’s findings, is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich 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).

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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Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

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