Argued and Submitted January 3, 2014
Employment Appeals Board, 12AB1262.
John D. Burgess argued the cause and filed the brief for petitioner.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 796] NAKAMOTO, J.
Claimant seeks judicial review of a final order of the Employment Appeals Board (EAB). The EAB affirmed the administrative law judge's (ALJ) denial of claimant's late request for a hearing concerning his right to extended unemployment insurance benefits that he had already received. Claimant, who is a native Cantonese speaker, contends that the Employment Department (department) failed to follow its policy on assisting claimants with limited English language proficiency. He contends that those circumstances met the " good cause" standard for late hearing requests in OAR 471-040-0010(1). We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
Agency findings of fact, unless challenged, are assumed to be correct on review. Meltebeke v. Bureau of Labor and Industries, 322 Or. 132, 134, 903 P.2d 351 (1995). The unchallenged findings of the EAB in this case are as follows: Claimant's native language was Cantonese. Although he had lived and worked in the United States for approximately thirty years, he spoke broken English. He could " listen pretty good" in English, but reading English was a " problem." He sometimes had his wife assist him with English communications.
Claimant filed an initial claim for unemployment insurance benefits in February 2009. When payment on his claim for regular benefits was exhausted, he filed for, and was paid, extended benefits. However, the department later determined that he was not entitled to those extended benefits. In March 2011, claimant received a written decision from the department to that effect, in English.
Within the time period allowed for a hearing request, claimant took the 2011 decision to a local office of the department, where a department employee explained to him that he could request a hearing on the decision. Claimant therefore understood that he had been denied extended benefits and that he could request a hearing on the denial, but he did not comprehend the full legal effect of the decision, namely, that he would have to repay the extended [266 Or.App. 797] benefits that he had received. Claimant filled out a hearing request form but never filed it.
Ten months later, in 2012, claimant received a notice from the department stating that he had to repay the extended unemployment insurance benefits that he had received. Once he received the repayment notice, claimant filed a late request for a hearing on the department's March 2011 decision that he was ineligible for the extended benefits.
The administrative record reveals the following procedural history. Claimant appeared at two hearings regarding whether he had good cause for the lateness of his 2012 hearing request; the second hearing was scheduled so that claimant could have an interpreter. Claimant represented himself at both hearings. He did not introduce a copy of the department's " limited English proficient" (LEP) policies as an exhibit. A representative of the department appeared and testified, but no party presented testimony from the department's employee in its Albany office who had spoken with claimant about the March 2011 decision. The ALJ determined that claimant had not ...