BOSTON MUTUAL LIFE INS. v. DIRECTOR, DIV., EMP. SEC., 384 Mass. 807 (1981)

427 N.E.2d 748

Supreme Judicial Court of Massachusetts.
October 30, 1981.

We reverse the judgment of the District Court affirming the decision of the board of review of the Division of Employment Security ordering the payment of unemployment benefits to the claimant, Francis A. Thone.

It is clear that the board of review made findings contrary to those of the review examiner, who had denied benefits to the claimant, finding that he was discharged solely for deliberate misconduct in wilful disregard of the employing unit’s interest within the meaning of G.L.c. 151A, § 25 (e) (2). Where the board of review does not conduct an evidentiary hearing (as is the case here), its inquiry is limited on questions of fact solely to the issue whether the review examiner’s findings are supported by substantial evidence. See Director of the Div. of Employment Security v. Fingerman, 378 Mass. 461, 463 (1979). See G.L.c. 151A, § 41 (b). The board of review improperly made independent findings of fact.

There is a further problem in that both the review examiner and the board of review made their decisions on the mistaken assumption that the claimant had violated company policy by applying accrued dividends of policyholders to accounts in arrears. The evidence showed, and the claimant agreed, that he had violated company policy with respect to policyholders’ accounts not in arrears. This misunderstanding casts particular doubt on the reasoning of the decision of the board of review.

The judgment is reversed and the case is to be remanded to the Division of Employment Security for further consideration in light of this opinion.

So ordered.

Henry T. Goldman for the plaintiff.

Mary Ann Remillard for Francis A. Thone.