Board of Review Decision 352-NHVH-P8FD

The claimant was discharged because he had gotten into a motor vehicle accident while operating the employer’s truck. Held the claimant is entitled to benefits pursuant to G.L. c. 151A, § 25(e)(2), because the employer did not prove that the claimant acted deliberately to cause the accident.

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Issue ID: 352-NHVH-P8FD

Board of Review Decision

Introduction and Procedural History of this Appeal 

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

The claimant separated from his position with the employer on December 30, 2025. He filed a claim for unemployment benefits with the DUA, effective December 26, 2025, which was denied in a determination issued on January 27, 2026. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the claimant, the review examiner overturned the agency’s initial determination and awarded benefits in a decision rendered on March 4, 2026. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant had not engaged in deliberate misconduct in wilful disregard of the employer’s interest or knowingly violated a reasonable and uniformly enforced rule or policy of the employer and, thus, was not disqualified under G.L. c. 151A, § 25(e)(2). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal, we remanded the case to the review examiner to obtain additional evidence about the circumstances surrounding the claimant’s separation. Only the employer 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 the claimant was eligible for benefits because he did not get into the motor vehicle accident for which he was discharged, 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. From June 19, 2023, until December 30, 2025, the claimant worked as a full-time (40 plus hours per week) driver for the employer, a trucking company. 
2. In the course of his duties, the claimant drove the employer’s vehicles. 
3. The claimant reported directly to the employer’s owner (the owner). 
4. Throughout his employment, the claimant performed his job as required and to the best of his ability. 
5. The employer maintained a disciplinary process policy contained within its employee handbook. The policy read, in relevant part, “Violation of [the employer]’s policies or procedures may result in disciplinary action, including demotion, transfer, leave without pay, or termination of employment. The Company encourages a system of progressive discipline depending on the type of prohibited contact.” 
6. On June 16, 2023, the claimant signed an acknowledgment that he received the employee handbook. 
7. The claimant was aware, as a matter of common sense, that the employer expected him to refrain from accidents while operating its company vehicles. 
8. On June 5, 2025, the claimant inadvertently backed the employer’s company vehicle into a road saw. At the time, there were no spotters. The road saw sustained damage. The claimant and the owner discussed the incident. 
9. On or around November 25, 2025, the claimant accidentally bumped a trailer while maneuvering the employer’s vehicle in a tight squeeze. 
10. The claimant did not initially receive written warnings as a result of the June 5, 2025, and [sic] on or around November 25, 2025, accidents. 
11. On December 4, 2025, the claimant drove the employer’s MAC tractor with a dump trailer (the tractor). The claimant picked up the tractor at the employer’s garage in [City A] and drove it to a job site in [City B]. Once he arrived at the job site, the claimant backed the tractor into the job site and unintentionally struck a parked passenger car (the car) in the area. 
12. At no time did the claimant notice, feel, or intend to make contact with another vehicle while driving the tractor on December 4, 2025. 
13. On December 4, 2025, while driving the tractor, the claimant was following all traffic laws and regulations. 
14. The claimant was neither distracted nor inattentive while driving the tractor on December 4, 2025. 
15. The claimant was not under the influence of drugs or alcohol when he drove the tractor on December 4, 2025. 
16. Sometime between 7:30 a.m. and 8 a.m. on December 4, 2025, a superintendent at the job site announced that a parked passenger car (the car) had been hit. The claimant went over to the car and noticed a minor scuff on the left side of the car’s rear bumper. The claimant then saw a woman look at the damage, get into the car, and drive away. The claimant also surveyed the tractor and did not see any damage. The claimant did not believe that he had hit the car with the tractor.
17. While the claimant was at the job site, the police were not called and there was no exchange of insurance information with the car’s driver. 
18. Shortly thereafter, after the woman drove away in the car, the claimant left the job site in the tractor. 
19. The claimant did not receive a traffic citation and had no police involvement as a result of anything that occurred on December 4, 2025. 
20. On December 4, 2025, the superintendent at the job site called the owner and told him that the claimant had hit the car with the tractor and that the incident was being reported to the [City B] police. The superintendent provided the owner with photographs showing damage to the car. 
21. Later that afternoon, the owner spoke with the claimant and discussed the earlier incident that day. The claimant told the owner that he understood that the car had been hit, but that he did not think that he had struck it himself. The owner and the claimant then reviewed the photographs that had been provided to the owner by the superintendent. The owner told the claimant that he would investigate further. 
22. Sometime later in December 2025, the owner received a report from the [City B] police department indicating that upon review of video footage obtained from the site where the claimant had been working on December 4, 2025, it had determined that the claimant had hit the car with the tractor, that there had been damage to the car’s rear bumper, and that the claimant was at fault. 
23. The owner never saw the video footage of the December 4, 2025 incident. 
24. Given that this was the claimant’s third motor vehicle accident, the owner decided to discharge the claimant for striking the car with the tractor on December 4, 2025. 
25. The claimant continued working for the employer until December 30, 2025. 
26. On December 30, 2025, the owner met with the claimant and presented him with 3 written warnings: a first warning for the June 5, 2025 incident, a second warning for the on or around November 25, 2025 incident, and a final warning for the December 4, 2025 incident. The owner told the claimant that the [City B] police had reviewed the video footage and had determined that the claimant had hit the car on December 4, 2025, and that he was at fault. The owner then discharged the claimant from his employment effective immediately for having hit the car with the tractor on December 4, 2025. 
27. At no time prior to December 30, 2025 had the claimant been issued with written warnings regarding the June 5, 2025, [sic] on or around November 25, 2025, or[sic] December 4, 2025 incidents.

Credibility Assessment: 

During the remand hearing, the owner testified that he was informed by the job site’s superintendent that the claimant had struck the car, and that a subsequent report from the [City B] police department (which included review of video footage from the job site) indicated that the claimant had struck the car with the tractor. Where the claimant testified (at the initial hearing) that he did not recall if he had hit another vehicle, and where the owner testified that the claimant told him that he did not think he had hit the car, it is concluded that the most logical and plausible scenario is that the claimant did, in fact, strike the vehicle on December 4, 2025. 

However, at the initial hearing, the claimant provided detailed and consistent testimony that he never noticed, felt, or intended to hit any other vehicle when he was driving the tractor on December 4, 2025. The claimant described how he followed all traffic laws and regulations, was neither inattentive nor distracted, was not under the influence of drugs or alcohol, and how he received no citations for his driving on that day. During the remand hearing, the owner stated that he was not present at the time of the incident, that he never reviewed the relevant video footage, and testified that he did not believe that the claimant intentionally struck the car. The owner also provided no testimony to refute the claimant’s assertions during the initial hearing that he never noticed or felt that he had struck any vehicle, that he was following all traffic laws and regulations, that he was neither inattentive nor distracted, and that he was not under the influence of drugs or alcohol. It is therefore concluded that the claimant’s testimony in this regard is credible.

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. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. As discussed more fully below, we believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is entitled to benefits. 

Because the claimant was discharged from his employment, his eligibility for benefits is governed by G.L. c. 151A, § 25(e)(2), which provides, in pertinent part, as follows: 

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work . . . (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence . . . . 

“[T]he grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.”  Still v. Comm’r of Department of Employment and Training, 423 Mass. 805, 809 (1996) (citations omitted). 

Although the employer maintains a policy regarding at-fault accidents, it retains discretion over what discipline to issue for violations of that policy. Consolidated Finding 5. As the employer did not show that it discharged all other similarly situated employees who had gotten into an at-fault accident while operating an employer vehicle, the employer has not met its burden to show a knowing violation of a reasonable and uniformly enforced policy. 

We next consider whether the employer has met its burden to show the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. To meet this burden, the employer must first show the claimant engaged in the misconduct for which he was discharged. 

In this case, the employer discharged the claimant because he had hit another vehicle when operating the employer’s truck on December 4, 2025. Consolidated Finding 26. Following remand, the review examiner found that the claimant did cause damage to a parked vehicle when reversing the employer’s truck onto a client’s property. Finding of Fact 11. Therefore, the record shows that the claimant engaged in the misconduct for which he was discharged. 

The next question to consider is whether the claimant’s misconduct was deliberate. Although the local police department determined that the claimant was at fault for the accident, we form no opinion about whether the employer was justified in terminating the claimant. See Consolidated Finding 22. The issue before us “is whether the Legislature intended that certain unemployment benefits should be denied in the circumstances of a case such as this.” Goodridge v. Dir. of Division of Employment Security, 375 Mass. 434, 436 (1978). Specifically, pursuant to G.L. c. 151A, the employer must show that the claimant acted deliberately when he engaged in the misconduct for which he was discharged. See, e.g., Grise v. Dir. of Division of Employment Security, 393 Mass. 271, 274–275 (1984) (leaving work without authorization and making himself unavailable was deliberate misconduct); and Sharon v. Dir. of Division of Employment Security, 390 Mass. 376, 378 (1983) (refusal to make public apology for derogatory remarks was obviously intentional misconduct). 

Following remand, the review examiner accepted as credible the claimant’s testimony that he did not intentionally collide with the parked car on December 4, 2025. Consolidated Findings 11 and 12. The review examiner also accepted the claimant’s testimony that he had not engaged in any other unsafe or unlawful behavior that caused the collision. Consolidated Findings 13 and 14. Such assessments are within the scope of the fact finder’s role, and, unless they are unreasonable in relation to the evidence presented, they will not be disturbed on appeal. See School Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7, 15 (1996). Upon review of the record, we believe that the review examiner’s assessment is reasonable in relation to the evidence presented.

Pursuant to his credibility assessment, the review examiner found the claimant did not intend to collide with the vehicle when he was operating the employer’s truck on December 4, 2025. Consolidated Findings 11 and 12. As such, and since we see no other evidence showing that the claimant intentionally engaged in behavior that caused the collision, the only reasonable inference is that the December 4^th accident was not deliberate. See Consolidated Findings 13–15. 

We, therefore, conclude as a matter of law that the employer did not meet its burden to show that the claimant engaged in deliberate misconduct in wilful disregard of the employing unit’s interest or knowingly violated a reasonable and uniformly enforced rule or policy of the employer, as meant under G.L. c. 151A, § 25(e)(2). 

The review examiner’s decision is affirmed. The claimant is entitled to receive benefits for the week ending January 3, 2036, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – June 12, 2026

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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