MARION WALKER vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

HENNESSEY, C.J. Pursuant to G. L. c. 151A, Section 42, Marion Walker (claimant) appeals from the decision of a District Court judge affirming the decision of the board of review of the Division of Employment Security, which determined that her request for hearing was not timely filed.

On January 12, 1979, the claimant received, by hand delivery, a notice of disqualification for unemployment benefits under the Employment Security Law, G. L. c. 151A. [Note 2] On January 29, 1979, seventeen days after the notice of disqualification, the claimant appealed her disqualification by requesting a hearing, pursuant to G. L. c. 151A, Section 39 (b). A hearing was held before a review examiner of the Division

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of Employment Security, for the purpose of determining whether good cause existed for the claimant's failure to request a hearing within the ten-day appeal-of-right period prescribed by G. L. c. 151A, Section 39 (b). [Note 3] The review examiner determined that no good cause existed and dismissed the appeal. The claimant appealed to the board of review, which, after a remand to the review examiner for the taking of additional evidence, affirmed the decision of the review examiner and dismissed the appeal. The claimant then sought judicial review, pursuant to G. L. c. 151A, Section 42, as amended through St. 1978, c. 478, Section 79, in the First Barnstable Division of the District Court Department which affirmed the board's decision. The claimant now appeals directly to this court pursuant to G. L. c. 151A, Section 42.

The claimant concedes that her appeal of her disqualification was not filed within ten days following the January 12, 1979, delivery in hand of the notice of disqualification, as provided by G. L. c. 151A, Section 39 (b). She contends, however, that she had "good cause" for failing to request a hearing within ten days, and that her January 29, 1979, request for a hearing was therefore timely under Section 39 (b). [Note 4]

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At the first hearing before the review examiner, the claimant testified that on January 12, 1979, when the notice of disqualification was delivered to her by a claims adjudicator at the local division office, the two of them discussed the claimant's right to appeal her disqualification. The adjudicator told the claimant that an appeal "would not make any difference because the employer would win the case anyhow." The claimant testified that the adjudicator's representation that an appeal would be useless discouraged her from appealing. The claimant testified in addition that on January 12, 1979, she believed she was about to start a new job with a State agency, and that she did not appeal because she did not think she would be able to get the time off from her new job for an appeal hearing.

On January 23, 1979, the claimant was notified that due to a hiring freeze, she would not be hired for the new job. The next day she returned to the local division office and spoke with the same adjudicator she had seen on January 12, 1979. According to the claimant, the adjudicator again told her that an appeal would make no difference. On January 29, 1979, the claimant filed a request for a hearing.

The claimant contends that the statements made to her by the adjudicator on January 12, 1979, discouraged her from filing an appeal, and thus "good cause" exists under G. L. c. 151A, Section 39 (b). The review examiner's decision that the statutory good cause standard was not met contained no findings of fact on the key issue of whether the claimant, on January 12, 1979, had been discouraged from appealing; the decision focused instead on the claimant's testimony concerning the conversation of January 24, 1979, two days after the expiration of the ten-day appeal-of-right period of Section 39 (b). After the claimant appealed the review examiner's decision to the board of review, the board remanded the case specifically to obtain testimony of the claimant and the adjudicator concerning the conversation of appeal rights on January 12, 1979. At the remand hearing, the claimant again testified that the adjudicator's statements

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on January 12 convinced her not to appeal. The adjudicator in turn testified that she had no recollection of the January 12 conversation with the claimant, but that it was not her "policy" to comment on a claimant's chance of winning an appeal. In its decision, the board of review made no findings of fact, but merely affirmed the decision of the review examiner.

On the claimant's petition for judicial review, the District Court judge noted the conflicting evidence on the still unresolved issue of whether the adjudicator discouraged the claimant from appealing. The judge ruled, however, that even assuming the claimant's version to be the true account of the content and effect of the January 12, 1979, conversation, this would not constitute good cause for failing to file an appeal within the prescribed time. In so ruling, the District Court judge regarded the alleged statements by the adjudicator as "at best a mere expression of the adjudicator's prediction of the outcome of an appeal and...not...an official statement."

We disagree with the District Court judge's ruling. A claimant who is found to have been directly discouraged by an administrative official from pursuing an appeal has good cause under G. L. c. 151A, Section 39 (b), for any consequent delay in filing that appeal. Such an interpretation of the good cause standard is warranted by the relative positions of the parties, and the power, whether real or perceived, that a claims adjudicator wields over individual claimants. Although a claimant may be informed of the right to appeal an adverse determination, the practical value of that information is severely undercut when, as may have happened here, her claims adjudicator leads her to believe that the exercise of that right would be futile.

Because neither the review examiner nor the board made any finding on the material issue of whether the adjudicator made the alleged statements on January 12, 1979, and, if so, whether the statements deterred the claimant from appealing within the ten-day period, we do not know whether the claimant's testimony that she was in fact deterred was

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rejected or merely disregarded as insufficient cause for delay. In the opinion of a majority of the court, therefore, the case must be remanded to the Division of Employment Security for a determination on this issue. See Smith v. Director of the Div. of Employment Security, 376 Mass. 563, 564, 568 (1978) (stressing that without "specific, clear, and complete" findings on all material issues this court must remand to the appropriate agency for fact finding).

The decision of the District Court is reversed. The case is remanded to that court for remand to the Division of Employment Security.

So ordered.