Colorado § 8-74-106 - Appeals - time limits - procedures.

§ 8-74-106. Appeals - time limits - procedures.

(1) The following procedures and limitations shall apply to all appeals taken pursuant to this article:

(a) Any party may petition for review of a deputy's decision by filing a petition therefor with the division within twenty calendar days after the date of notification of such decision. Notification of the decision shall be by personal delivery of the decision to an interested party or by mailing a copy of the decision to the last-known address shown in the division records of an interested party and to the interested party's attorney or representative of record, if any, or by electronic means. The date of notification shall be the date of personal delivery, the date of transmission as recorded by the division, if notification is made by electronic means, or the date of mailing of a decision.

(b) Unless, within twenty calendar days after the date of notification of a deputy's decision, an interested party petitions for review of such decision, the decision shall be final. Petitions for review may be accepted out of time only for good cause shown and in accordance with rules adopted by the director of the division.

(c) The division shall give written notice to all interested parties when a petition for review is filed. Such notice shall be pursuant to regulations adopted by the director of the division.

(d) Pursuant to section 8-72-107, each interested party shall be given such reasonable access to division records concerning the claim as is necessary for proper presentation of his position concerning the claim.

(e) Any interested party to an appeal from a deputy's decision shall be entitled to a hearing before a hearing officer. All interested parties shall have the right to be present or to be represented by an attorney or other representative at the hearing, to present such testimony and evidence as may be pertinent to the claim, and to cross-examine witnesses. The division, pursuant to regulations adopted by the director of the division, shall notify all interested parties of the hearing. Such notification shall be made not less than ten calendar days prior to the hearing.

(f) (I) The manner in which disputed claims shall be presented, the reports required from interested parties, and the conduct of hearings shall be in accordance with the provisions of this article and the regulations prescribed by the director of the division, whether or not such regulations conform to common law or statutory or regulatory rules of evidence or other technical rules of procedure.

(II) Evidence and requirements of proof shall conform, to the extent practicable, with those in civil nonjury cases in the district courts of this state. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceeding, the person conducting the hearing may receive and consider evidence not admissible under such rules, if such evidence possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The person conducting a hearing shall give effect to the rules of privilege recognized by law. He may exclude incompetent and unduly repetitious evidence. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available; but, upon request, the party shall be given an opportunity to compare the copy with the original. The division may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. The provisions of the "State Administrative Procedure Act", article 4 of title 24, C.R.S., and particularly sections 24-4-105 and 24-4-106, C.R.S., shall not apply to hearings and court review under this article. However, the rule-making provisions of section 24-4-103, C.R.S., shall apply to this article.

(III) When the same or substantially similar evidence is relevant and material to the matters at issue in claims by more than one individual or in claims by a single individual with respect to two or more weeks of unemployment, the same time and place for considering each such claim may be fixed, hearings thereon may be jointly conducted, a single record of the proceedings may be made, and evidence introduced with respect to one proceeding may be considered as introduced in the others, if, in the judgment of the tribunal having jurisdiction over the proceeding, such consolidation would not be prejudicial to any interested party.

(IV) No person shall participate on behalf of the division in any case in which he has a direct or indirect interest.

(V) A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded but need not be transcribed unless the disputed claim is presented for further review. If necessary, the industrial claim appeals panel may listen to the recorded testimony of a hearing on a disputed claim prior to rendering a decision. If review is sought pursuant to section 8-74-107, the division shall transcribe the testimony pursuant to such regulations as the director of the division may prescribe.

(g) Repealed.

Source: L. 76: Entire article R&RE, p. 356, § 1, effective October 1. L. 79: (1)(e) amended and (1)(g) repealed, pp. 352, 356, §§ 17, 25, effective September 30. L. 81: (1)(a) and (1)(b) amended, p. 485, § 10, effective July 1. L. 86: (1)(a), (1)(b), (1)(c), (1)(e), (1)(f)(I), (1)(f)(II), (1)(f)(IV), and (1)(f)(V) amended, p. 490, § 95, effective July 1. L. 96: (1)(a) and (1)(b) amended, p. 383, § 9, effective April 17. L. 2002: (1)(a) amended, p. 337, § 4, effective April 19. L. 2007: (1)(a) and (1)(b) amended, p. 804, § 6, effective August 3.

Editor's note: This section is similar to former §§ 8-74-102, 8-74-104, 8-74-106, and 8-74-107 as they existed prior to 1976.

ANNOTATION

Annotator's note. (1) Since § 8-74-106 is similar to provisions in former §§ 8-74-102, 8-74-104, 8-74-106, and 8-74-107 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 panel.

This section requires receipt by the division, not depositing in the mail, as the determinative factor as to whether a petition is filed timely under subsection (1). Andrews v. Dir., Div. of Emp., 41 Colo. App. 408, 585 P.2d 933 (1978); Fink v. Indus. Comm'n, 689 P.2d 708 (Colo. App. 1984).

Notice lacking. Where there is neither evidence nor presumption that would support the finding that the notice was mailed, and since the only evidence in the record indicates that the employer did not receive notice of the claim, the employer was not given notice and was improperly denied its right to a hearing and determination on the merits of the claim. Allred v. Squirrell, 37 Colo. App. 84, 543 P.2d 110 (1975).

Attorney's negligent failure to timely file appeal. The negligence of claimant's attorney in failing to timely file an appeal pursuant to subsection (1)(a) constitutes "good cause" for accepting the untimely appeal. Trujillo v. Indus. Comm'n, 648 P.2d 1094 (Colo. App. 1982).

Attorney's reliance on information from commission. Reliance by attorney on conversation with employee of commission during which he was told that mailing and postmarking constituted filing constitutes "good cause" for accepting the untimely appeal. Fink v. Indus. Comm'n, 689 P.2d 708 (Colo. App. 1984).

It is employer's responsibility to seek extension of time for filing appeal, and it may not rely on the absence of the general counsel as an excuse for failing to do so. Mohawk Data Sciences Corp. v. Indus. Comm'n, 671 P.2d 1335 (Colo. App. 1983).

Claimant's sworn statement that he did not actually receive a copy of the referee's decision until eight days before filing his appeal was sufficient to establish prima facie "good cause" for filing a late appeal and to require an evidentiary hearing on claimant's credibility. The mere fact that an envelope bears a correct address and sufficient postage is not a guarantee that it was properly and timely delivered. While a presumption of such delivery may arise from those facts, it is a rebuttable one. Trujillo v. Indus. Comm'n, 735 P.2d 211 (Colo. App. 1987).

A hearing officer's initial decision should have been reinstated in an unemployment compensation case where it was not appealed from or reconsidered pursuant to applicable statutory provisions. Landers v. Indus. Comm'n, 721 P.2d 1227 (Colo. App. 1986).

On allegation of improper notice, commission (now hearing officer) must conduct hearing. When claimant alleges in a request for review that the division's decision was not sent to his "last-known address" because the commission was informed that claimant was not located at that address, the commission (now hearing officer) must conduct a hearing to determine if claimant's allegation is true, and if true whether the request for review was made within 15 days after a copy of the decision was actually delivered. Henderson v. Indus. Comm'n, 35 Colo. App. 124, 529 P.2d 651 (1974).

When claimant admitted that she received notice of withdrawal of her appeal for failure to appear before the referee, and such notice gave claimant the opportunity for a hearing on the issue of good cause for such failure, but she had not appealed it because she had misunderstood the deputy's decision and believed she would receive full benefits, such reason was not good cause for failing to take advantage of the opportunity. Kreigel v. Indus. Comm'n, 702 P.2d 290 (Colo. App. 1985).

Notice must be given to parties and attorneys of record. Due-process requirements qualify statutory enactment, which must be interpreted, if possible, so as to conform to constitutional standards. The court interprets the statutory requirements that the parties be given notice of the decision to necessarily require that a like notice be given to their attorneys of record. Mtn. States Tel. & Tel. Co. v. Dept. of Labor & Emp., 184 Colo. 334, 520 P.2d 586 (1974).

Employer representative's late arrival for hearing caused by delays not entirely within her control constituted good cause for failure to appear at the scheduled hearing. Albertsons, Inc. v. Indus. Comm'n, 735 P.2d 220 (Colo. App. 1987).

This section allows but does not require representation by counsel at hearing and decision to grant continuance based upon request for counsel lies within discretion of hearing officer. Voisinet v. Indus. Claim Appeals Office, 757 P.2d 171 (Colo. App. 1988).

Representation by an attorney. Although the unemployment act allows a party to be represented by an attorney at the hearing, it does not require counsel for parties to be present, nor does it automatically mandate a continuance if a party appears without an attorney and fails to request a continuance in order to have one present. Larsen-Oldaker v. Indus. Comm'n, 735 P.2d 209 (Colo. App. 1987).

Representation by non-attorneys allowed. Persons entitled to a hearing regarding the appeal of a deputy's decision may be represented by a non-lawyer, even though such representation constitutes practicing law. Unauthorized Prac. of Law v. Employers Unity, 716 P.2d 460 (Colo. 1986).

Interrogatories not permitted. The commission has adopted no regulations permitting the use of interrogatories at hearings, and to extend by judicial fiat the tool of interrogatories to employers in unemployment compensation hearings could well lead to intimidation and harassment of claimants, and a stifling of their pursuit of otherwise valid claims. Denver Symphony Ass'n v. Indus. Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974).

Which is not denial of due process. Not allowing an employer to have answers to written interrogatories served on each of the employees in an unemployment compensation hearing violated no common-law or statutory right, nor was the employer thereby denied due process of law. Denver Symphony Ass'n v. Indus. Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974).

Hearing officer has discretion to determine the order and manner of presentation of witnesses and evidence. Ward v. Indus. Claim Appeals Office, 916 P.2d 605 (Colo. App. 1995).

Neither the statutes nor the regulations require parties to exchange documents prior to a hearing that will be conducted in person. QFD v. Indus. Claim Appeals Office, 873 P.2d 32 (Colo. App. 1993).

Cross-examination in unemployment compensation hearings may be restricted, and only where the restriction is severe enough to constitute a denial of the right will limitation of cross-examination be overturned as an abuse of discretion. Denver Symphony Ass'n v. Indus. Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974).

May not deny benefits where only evidence hearsay. Where the only evidence supporting the commission's decision is an affidavit which is clearly hearsay, this evidence alone cannot serve as the basis for the commission's ruling denying unemployment compensation benefits. Olivas v. Indus. Comm'n, 33 Colo. App. 78, 515 P.2d 110 (1973).

However, the commission erred in failing to consider new evidence in the form of a letter because the letter, combined with claimant's statement, had probative value and should have been considered in determining whether the employer had met his burden. Perez v. Indus. Comm'n, 711 P.2d 1283 (Colo. App. 1985) (decided prior to 1986 abolishment of industrial commission).

It is improper for the industrial commission to arrive at a decision in an unemployment compensation case which may have been based partly on hearsay documents not presented at the hearing conducted by the referee. Wilson v. Colo. Indus. Comm'n, 30 Colo. App. 154, 490 P.2d 91 (1971).

And claimant's letter rebutting hearsay is not waiver as to its consideration. Although claimant is aware that hearsay documents have been filed with the commission and attempts by letter to rebut their effect, his actions do not constitute a waiver as to the consideration of these documents. Wison v. Colo. Indus. Comm'n, 30 Colo. App. 154, 490 P.2d 91 (1971).

Hearsay testimony found unreliable. Hearsay testimony, pursuant to subsection (1)(f)(II), found not so reliable that "reasonable and prudent men" would necessarily assign it probative value. Sante Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983).

Weight of hearsay evidence. Hearsay evidence alone may be basis of determination in an unemployment compensation proceeding but only if such evidence is reliable and trustworthy and possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Flower Stop Mktg. Corp. v. Kilgore, 762 P.2d 747 (Colo. App. 1988), aff'd in part, rev'd in part on other grounds, 782 P.2d 13 (Colo. 1989) (applying Kirke v. State Dept. of Rev., 724 P.2d 77 (Colo. 1986), and overruling the "residuum rule" holding in Sims v. Indus. Comm'n, 627 P.2d 1107 (Colo. 1981), and subsequent cases that applied such rule).

Factors useful in determining whether hearsay evidence is reliable, trustworthy, and of some probative value. Indus. Claim Appeals Office v. Flower Stop Mktg. Corp., 782 P.2d 13 (Colo. 1989); Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173 (Colo. App. 1996).

The rules of evidence are somewhat relaxed in unemployment compensation hearings. QFD v. Indus. Claim Appeals Office, 873 P.2d 32 (Colo. App. 1993); Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173 (Colo. App. 1996).

Industrial commission files are business records. Industrial commission file used in good cause determination of untimely requests for review of referees decision, pursuant to commission regulations enacted under an express grant of legislative authority, is admissible as a business records exception to the hearsay rule. Kriegel v. Indus. Comm'n, 702 P.2d 290 (Colo. App. 1985).

Hearing officer in unemployment compensation case did not abuse discretion or deny employer fair hearing by admitting into evidence claimant's personal diary containing entries concerning incidents of alleged harassment by employer, despite employer's argument that claimant should have disclosed it prior to hearing. When employer objected to claimant's testimony about contents of the diary, hearing officer provided employer with opportunity to review it, and at no time did employer request a continuance or adjournment of hearing to allow it further time to prepare for cross-examination or rebuttal on the exhibit. QFD v. Indus. Claim Appeals Office, 873 P.2d 32 (Colo. App. 1993).

Action beyond jurisdiction of the commission. In an unemployment compensation hearing, the industrial commission has not competency to set aside solemn pronouncement of district court in divorce proceedings pertaining to a property division agreement in which claimant voluntarily resigned her position as secretary and bookkeeper of corporation of which her husband was president in exchange for cash, property, and stock; this was beyond commission's jurisdiction. Indus. Comm'n v. Lyle Adjustment Co., 160 Colo. 241, 417 P.2d 5 (1966).

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

The time for filing of appeal can only be waived for good cause shown. There was no good cause shown where the claimant failed to keep the division informed of his mailing address and therefore did not receive the decision in time to file an appeal. Sproule v. Indus. Claim Appeals Office, 830 P.2d 1152 (Colo. App. 1992).

Applied in Yanish v. Indus. Comm'n, 38 Colo. App. 492, 558 P.2d 1007 (1976); Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978); Anders v. Indus. Comm'n, 649 P.2d 732 (Colo. App. 1982); FlaHavhan v. Hewlett Packard Co., 675 P.2d 19 (Colo. App. 1983); Sproule v. Indus. Claim Appeals Office, 830 P.2d 1152 (Colo. App. 1992).