Bashinsky v. UCBR – Cmwlth. Court – 2-24-21 – reported decision
Held: Claimant’s act of contacting the UC Service Center, as evidenced by record of “Live Chat,” was evidence that he did not received the UCSC notice of determination and rebutted the presumption of receipt of the notice.
The Board’s finding the claimant received a notice of determination on the date alleged “is not supported by substantial evidence.” There was “no entry in the claim record indicating that a notice of determination was mailed” on the date claimed by the Department. In addition, the Board’s credibility determination [concerning claimant’s testimony of non-receipt] is an insufficient basis for denying nunc pro tunc relief.
This is not a case where the claimant made an after-the-fact assertion that he did not receive a notice of determination. Claimant’s act of initiating the LiveChat session with the UCSC and asking whether there was “[a]ny update on my claim?,” is itself evidence that he had not received the notice because, if he had, there would have been no reason for him to contact the Service Center.
Moreover, the UC representative’s statement to claimant in the Live Chat that his claim was undergoing an adjudication process was “incorrect information” and showed a breakdown in the administrative process. The representative knew that the claim had already been denied, and the representative failed to notice claimant of the appeal deadline, which was three days after the Live Chat. Instead, the representative “provided Claimant with misdirection. . . .[i]nstead of responding to Claimant’s specific request for an update on his claim.”
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This case is also reported in the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.
