Colorado § 8-74-104 - Industrial claim appeals office review.

§ 8-74-104. Industrial claim appeals office review.

(1) Any interested party who is dissatisfied by a hearing officer's decision may appeal that decision and obtain administrative review by the industrial claim appeals office. Any such appeal must be received by the industrial claim appeals office within twenty calendar days after the date of notification of the decision of the hearing officer. The director of the division may prescribe rules for the conduct of such appeals, including apportionment of transcript costs (not to exceed the actual costs of such materials), filing methods, briefing schedules, and similar matters.

(2) Upon petition to review by an interested party, the industrial claim appeals panel may affirm, modify, reverse, or set aside any decision of a hearing officer on the basis of the evidence in the record previously submitted in the case.

(3) The industrial claim appeals office shall promptly provide all interested parties with copies of the industrial claim appeals panel's written decision and order in each case.

(4) The panel shall have the power to issue such procedural orders as may be necessary to carry out its appellate review under subsection (2) of this section, including, but not limited to, orders concerning the acceptance of appeals before the panel and orders granting or denying requests for extension of time.

Source: L. 76: Entire article R&RE, p. 355, § 1, effective October 1. L. 79: (1) amended, p. 352, § 16, effective September 30. L. 81: (1) amended, p. 485, § 9, effective July 1. L. 86: Entire section R&RE, p. 490, § 93, effective July 1. L. 92: Entire section amended, p. 1812, § 2, effective March 19. L. 96: (1) amended, p. 383, § 8, effective April 17. L. 2002: (1) amended, p. 337, § 3, effective April 19. L. 2007: (1) amended, p. 804, § 5, effective August 3.

Editor's note: This section is similar to former § 8-74-105 as it existed prior to 1976.

ANNOTATION

Annotator's note. (1) Since § 8-74-104 is similar to provisions in former §§ 8-74-104 and 8-74-105 as said sections existed prior to the 1976 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12, which abolished said commission and transferred its powers, duties, and functions under this section to the industrial claim appeals office.

Under the provisions providing for a review by the commission, the "appeal" before the commission, while not mandatory, is permissible. Bryant v. Hayden Coat Co., 111 Colo. 93, 137 P.2d 417 (1943).

The commission has the ultimate responsibility for making the final findings of fact necessary to support its decision. McGinn v. Indus. Comm'n, 31 Colo. 6, 496 P.2d 1080 (1972); Karton v. Indus. Comm'n, 718 P.2d 255 (Colo. App. 1986).

An appeal in an unemployment compensation case removes the claim in its entirety, and the hearing is, in effect, a trial de novo. The administrative appellate tribunal may consider all matters at issue regardless of the ground of basis of the appeal and an appellant cannot limit the scope of the appeal by a provision in his notice of appeal. Anderson v. Indus. Comm'n, 29 Colo. App. 263, 482 P.2d 403 (1971).

Notice of appeal need not enumerate with particularity all possible issues. Where the petitioner is given an opportunity to present his claim de novo at the hearing before the referee, the notice sent to petitioner apprised him of that fact, and its declaration that all relevant issues would be considered was clear, it cannot be expected that such notice enumerate with particularity all possible relevant issues. Anderson v. Indus. Comm'n, 20 Colo. App. 263, 482 P.2d 403 (1971); Ward v. Indus. Comm'n, 699 P.2d 960 (Colo. 1985).

Section contains no provision that would authorize an appeal absent a transcript, even for questions of law. Movitz v. Division of Emp. and Train., 820 P.2d 1153 (Colo. App. 1991).

Restricting the scope of cross-examination. Referee has the authority to restrict the scope of cross-examination, and only when the restriction is severe enough to constitute a denial of the right will the limitation of cross-examination in an administrative hearing be overturned as an abuse of discretion. Ward v. Indus. Comm'n, 699 P.2d 960 (Colo. 1985).

Scope of review by industrial claim appeals panel. The jurisdiction of the industrial claim appeals panel is limited to acting in an appellate capacity in reviewing the hearing officer's findings and conclusions. Clark v. Colo. State Univ., 762 P.2d 698 (Colo. App. 1988); Brannan Sand & Gravel v. Indus. Claim Appeals Office, 761 P.2d 771 (Colo. App. 1988).

The commission is not held to a crystalline standard when it articulates its findings of fact. Allmendinger v. Indus. Comm'n, 40 Colo. App. 210, 571 P.2d 741 (1977).

Standard for review by industrial claim appeals panel allows the panel to weigh the evidence and to reject a hearing officer's findings which, although supported by some evidence, are contrary to the great weight thereof. Clark v. Colo. State Univ., 762 P.2d 698 (Colo. App. 1988).

Allowing the presentation of new evidence not originally presented to the hearing officer whose decision is being appealed is contrary to requirements of subsection (2), though the industrial claim appeals panel has the power to enter procedural orders to remedy an insufficient record. Alfaro v. Indus. Claim Appeals Office, 78 P.3d 1147 (Colo. App. 2003).

The industrial claim appeals panel exceeded its authority by substituting its own evidentiary findings for those of the referee that are amply supported by the record. The Panel's order is set aside because its ultimate findings and conclusions are not supported by the referee's factual findings. Prince-Walker v. Indus. Claim Appeals Office, 870 P.2d 588 (Colo. App. 1993), aff'd sub nom. Samaritan Inst. v. Prince-Walker, 883 P.2d 3 (Colo. 1994).

Under this act, it is the responsibility of the division of employment and training in the first instance, and ultimately the responsibility of the industrial commission, to determine claimant's eligibility for benefits. Thus, an employer's desire to withdraw its objection did not moot the case. Cordova v. Indus. Comm'n, 706 P.2d 810 (Colo. App. 1985).

Where the decision is justified, it may not be set aside "on the technicality of unclarity of expression on the part of the commission". Allmendinger v. Indus. Comm'n, 40 Colo. App. 210, 571 P.2d 741 (1977); Allen Co., Inc. v. Indus. Comm'n, 735 P.2d 889 (Colo. App. 1986), aff'd, 762 P.2d 677 (Colo. 1988).

Conclusion permitted by substantial evidence not disturbed on review. Where substantial evidence permits the conclusion drawn by the commission, it will not be disturbed on review. Allmendinger v. Indus. Comm'n, 40 Colo. App. 210, 571 P.2d 741 (1977).

No abuse of direction for failure of commission to order new hearing where letter did not reveal new facts but reflected a change in the employer's interpretation of previously submitted evidence. Cordova v. Indus. Comm'n, 706 P.2d 810 (Colo. App. 1985).

Industrial claim appeals office abused its discretion in refusing to consider latent ambiguities in its waiver of transcript fees request form and patent evidence which corroborated unemployment compensation claimant's claim of mistake, particularly where claimant never received a meaningful hearing. Richardson v. Freund and Co., 755 P.2d 1 (Colo. App. 1988).

The fact that the industrial commission reversed itself within a short period of time, and did so without fresh evidence, was not the product of arbitrariness. Allmendinger v. Indus. Comm'n, 40 Colo. App. 210, 571 P.2d 741 (1977).

A failure on the part of the commission to "promptly notify" interested parties of a decision may constitute error of a constitutional dimension. Patterson v. Indus. Comm'n, 39 Colo. App. 255, 567 P.2d 385 (1977).

Commission's disregarding hearsay testimony not erroneous. The commission does not err in disregarding the hearsay testimony of the employer's witness based on a business memorandum where the memorandum originated after the claim was filed, was not mentioned during the hearing, and was not submitted until the employer filed a petition to review the referee's decision. Santa Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983).

The assessment of the credibility of witnesses is within the authority of the commission in reviewing the referee's decision. Gandy v. Indus. Comm'n, 680 P.2d 1281 (Colo. App. 1983).

Applied in Andrews v. Dir., Div. of Emp., 41 Colo. App. 408, 585 P.2d 933 (1978); Matthews v. Indus. Comm'n, 44 Colo. App. 159, 609 P.2d 1127 (1980); Scofield v. Indus. Comm'n, 697 P.2d 815 (Colo. App. 1985).