Opinion
89-AB-848; CA A61720
Argued and submitted May 14, 1990.
Reversed and remanded for reconsideration November 7, 1990
Judicial Review from Employment Appeals Board.
Barrie J. Herbold, Portland, argued the cause for petitioner. With her on the brief were Christine T. Herrick and Markowitz, Herbold, Stafford Glade, P.C., Portland.
Jerome Lidz, Assistant Attorney General, Salem, waived appearance for respondent Employment Division.
No appearance for respondent Gayle J. Miller.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
RICHARDSON, P.J.
Reversed and remanded for reconsideration.
Employer seeks review of an Employment Appeals Board order that reversed the referee's decision and allowed unemployment benefits to claimant. We reverse and remand for reconsideration.
The question at the hearing was whether claimant had voluntarily quit work for good cause or was discharged for misconduct. See ORS 657.176; OAR 471-30-038. The resolution of the issue depended on the relative credibility of claimant and employer's witness. The referee found employer's evidence "more logical and more consistent" and concluded that claimant had left her job voluntarily and without good cause. Benefits were denied. Claimant appealed to EAB, which concluded that she was discharged due to attendance problems associated with various medical problems and is therefore entitled to benefits. See OAR 471-30-138 (3).
EAB may, of course, disagree with a decision of the referee. When it does so, however, it must explain its reasons so that, on review, we can determine as to whether EAB's decision is supported by substantial evidence. In this case, EAB made findings significantly different from those of the referee. Many of the findings reflect a different assessment of the credibility of the witnesses. Because the referee had an opportunity to see and hear the witnesses, his determination of credibility is given special weight. See Lewis v. Employment Division, 66 Or. App. 303, 308, 673 P.2d 1376 (1984). When EAB chooses not to accept the referee's credibility findings, it must explain why it disagrees and what, if any, weight it gave to the referee's credibility determination. Dan McCormack Agency v. Employment Division, 99 Or. App. 47, 781 P.2d 370 (1989); Lewis v. Employment Division, supra, 66 Or App at 308. Without such an explanation, we are unacceptably hampered in reviewing the order. See Petro v. Employment Division, 32 Or. App. 17, 573 P.2d 1250 (1978).
Reversed and remanded for reconsideration.