Unemployment Insurance

Web Library Topic - Good Cause Issues

Good cause issues arise when a party has failed to perform an act within a specified time limit, or has failed to act when action was required.  The party's untimely act or failure to act may be excused if the party shows good cause.  Regulation 12.1 contains the procedures and factors used for determining whether good cause has been shown.

Statutes

§ 8‑74‑103(1), C.R.S. 2005

Hearing officer review.

(1) Any interested party who is dissatisfied with a deputy's decision may appeal that decision and obtain a hearing covering any issue relevant to the disputed claim. The issue of a claimant's availability will be relevant to the extent set forth in section 8-73-107 (1)(c)(I)(A). The initial appeal shall be to a hearing officer designated by the director of the division and must be postmarked, if mailed, or received by the division, if submitted in person or by electronic means, within fifteen calendar days from the date of notification of the decision of the deputy in accordance with such rules as the director of the division may promulgate. "Deputy", as used in this article, means a person who adjudicates claims for the division when Colorado is the paying state. Wages paid in Colorado and transferred to another state in which the claimant has filed shall not be subject to adjudication by a deputy of the division or to an appeal directed to this state.

§ 8‑74‑104(1), C.R.S. 2005

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 postmarked, if mailed, or received by the industrial claim appeals office, if submitted in person or by electronic means, within fifteen calendar days from 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), filling methods, briefing schedules, and similar matters. 

§ 8‑74‑106(1)(b), C.R.S. 2005

Time limits and procedures for appeal within the division.

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

(b) Unless, within fifteen 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 regulations adopted by the director of the division. 

Regulations

Regulation 11.1.8, 7 Code Colo. Reg. 1101-2

Timeliness of Request for Review. Any determination made by the Division which is subject to redetermination under this section shall be deemed final, and any information contained in any document or notice issued by the Division which is subject to redetermination under this section shall be deemed correct unless the party files a timely request for redetermination in accordance with this regulation or establishes to the satisfaction of the Division that he had good cause for the failure to do so. Good cause for failure to file a timely request for redetermination shall have the meaning set forth in subsection 12.1.8 of these regulations.

Regulation 11.2.13, 7 Code Colo. Reg. 1101-2

Failure to Appear.

.1 In the event the appealing party fails to appear at the time and place scheduled for the hearing before the referee for which notice has been duly made, such nonappearance shall constitute a withdrawal of the appeal and the decision that was the subject of the appeal shall become final, unless the party establishes, pursuant to Part XII of these regulations, that he had good cause for his failure to appear. Written notice that the appeal has been dismissed shall be mailed to the interested parties named in the caption, and a written request that the hearing be rescheduled must be filed with the Division, postmarked or received within fifteen (15) calendar days of the mailing date of the dismissal notice. An untimely request that a hearing be rescheduled may be permitted by the Division for good cause shown, pursuant to the procedure set forth in Part XII of these regulations.

.2 In the event any other interested party fails to appear for a scheduled hearing, and a decision is issued by a referee on the merits of the appeal, such party may request that a new hearing be scheduled either by filing a written request with the Panel or filing a written appeal from the referee's decision containing such request, postmarked or received by the Panel within fifteen calendar days after the date of mailing of the referee's decision, and establishing, pursuant to Part XII of these regulations, that he had good cause for his failure to appear for the appeal hearing. An untimely request for a new hearing may be permitted by the Panel for good cause shown, pursuant to the procedure set forth in Part XII of these regulations. If it is determined the party has shown good cause for his failure to appear, the referee's decision that was issued on the merits of the appeal shall be vacated and a new hearing scheduled forthwith.

.3 When an interested party's attorney or other designated representative appears for, and participates in the scheduled hearing on the party's behalf, the party shall be deemed to have appeared for the hearing, for purposes of this regulation.

Regulation 12.1, 7 Code Colo. Reg. 1101-2

12.1.1 Statutory References: 8-73-107 (1)(h), 8-73-108 (5)(e)(XVIII)(XIX), 8-74-102, 8-74-106, 8-76-110 (2) (g), 8-76-110 (4)(e), 8-76-113, and 8-79-104 (1)(d), C.R.S.

12.1.2 Purpose. The purpose of this Part XII is to provide procedures and substantive guidelines for the determination of good cause only when a particular section of the Act or Regulations other than this Part XII specifically permits an untimely action or excuses the failure to act as required for good cause shown.

12.1.3 Procedure. Whenever an interested party files an untimely appeal from a deputy's decision, or whenever an appeal from a deputy's decision has been dismissed because the appealing party has failed to appear for a scheduled hearing before a referee, and has requested that a new hearing be scheduled, the Division shall determine if good cause has been shown for permitting the untimely appeal or excusing the failure to appear. Whenever an interested party files an untimely appeal from a referee's decision, or whenever an interested party failed to appear for a hearing held on an appeal from a deputy's decision and has filed a request for a new hearing, the Panel shall determine if good cause has been shown for permitting the untimely appeal or excusing the failure to appear. The Division or the Panel shall make a determination of good cause only if the untimely appeal or request for new hearing contains a statement of the reasons for which the party failed to act in a timely manner. The statement shall demonstrate the basis for a finding of good cause for permitting the untimely appeal or excusing the failure to appear by stating the reasons therefor with supporting relevant facts. If the party's untimely appeal or request for a new hearing does not contain such a statement, the Division, or the Panel, as appropriate, shall notify the party that the untimely appeal or request for a new hearing shall not be accepted unless the party can show good cause for his failure to act as required, and the party shall have ten (10) calendar days from the date of mailing such notice to submit a written statement with the Division, or the Panel, as appropriate.

12.1.4 Signing of Statement. For the purpose of this section, a statement may be handwritten or typewritten, but in all cases must be signed by the person giving the statement.

12.1.5 Determination of Good Cause. Upon receipt of the statement, the Chief Appeals Referee of the Division, or his designee, or the Panel, as appropriate, shall determine whether good cause has been shown for permitting an untimely appeal from a deputy's decision, a referee's decision, or for permitting the untimely request for a hearing, or for excusing the failure to appear for a hearing. Such determination shall be in writing with supporting findings of fact and shall be mailed to all interested parties. If the Panel determines that good cause exists for permitting a late appeal, the decision shall contain a written notification that the other-named interested parties may object to the good-cause determination by raising their objections in their written arguments as permitted by regulation 11.2.15.12. The Panel shall consider any objections and conduct further appropriate proceedings to reconsider the good-cause determination.

12.1.6 Additional Evidence. In determining whether good cause has been shown for permitting an untimely appeal from a deputy's decision, or for excusing failure to appear for a hearing, the Chief Appeals Referee, or his designee, may take or accept additional reliable evidence by such means as shall be deemed appropriate for the resolution of the issue, including holding a hearing. In making an initial determination of whether good cause has been shown for permitting an untimely appeal from a referee's decision, or for excusing the failure to appear for a hearing, the Panel may request or accept additional written evidence, or may order that a hearing be conducted by a referee to obtain such evidence deemed necessary to resolve this issue.

12.1.7 Appeals. If any interested party objects to a determination of the Chief Appeals Referee, or his designee, or the Panel, based solely on written documents, that good cause exists for an untimely appeal from a deputy's decision or a determination of the Chief Appeals Referee, or his designee, or the Panel, which excuses the failure to appear for a hearing or determines that good cause exists for an untimely request for a new hearing, or objects to a determination that good cause exists for accepting an untimely appeal and a new hearing is required because the complete record of the proceedings is no longer available, that interested party may present its objections at the hearing scheduled on the issues in dispute. The referee will consider all objections and responses, and supporting evidence, and will determine if good cause exists for permitting the untimely appeal or excusing the failure to appear or excusing the untimely request for a new hearing based on the evidence presented. If good cause is not found, the hearing will be terminated and any previously vacated referee's decision on the merits of the appeal shall be reinstated. If good cause is found, the hearing will proceed on the merits of the issue in dispute.

12.1.8 Substantive Guidelines. In determining whether good cause has been shown for permitting an untimely action or excusing the failure to act as required, the Division and the Panel may consider any relevant factors including but not limited to whether the party acted in the manner that a reasonably prudent individual would have acted under the same or similar circumstances, whether the party received timely notice of the need to act, whether there was administrative error by the Division, whether there were factors outside the control of the party which prevented a timely action, the efforts made by the party to seek an extension of time by promptly notifying the Division, the party's physical inability to take timely action, the length of time the action was untimely, and whether any other interested party has been prejudiced by the untimely action. Provided, however, that good cause cannot be established to accept or permit an untimely action or to excuse the failure to act as required which was caused by the party's failure to keep the Division directly and promptly informed of his or her current and correct mailing address, in writing or by telephone using CUBLine, the Division's interactive voice response system, unless it is determined that the party reasonably believed that the Division would not have any need for his or her new address under the circumstances. A written decision concerning the existence of good cause need not contain findings of fact on every relevant factor, but the basis for the decision must be apparent from the order.

Cases

Good Cause - Generally

Paul v. Industrial Commission, 632 P.2d 638 (Colo. App. 1981)

Having filed a claim for unemployment benefits, a claimant is presumed to have knowledge of the unemployment statutes.

Tucker v. Industrial Commission, 708 P.2d 484 (Colo. App. 1985)

Good cause was shown when a claimant failed to timely file for unemployment benefits because he relied on advice given to him by the Department of Labor and Employment.

Trujillo v. Industrial Commission, 735 P.2d 211 (Colo. App. 1987)

Credibility cannot be determined through the written word alone.  Credibility can only be assessed in a hearing.  Here, the claimant's written statement that he did not receive notice of the hearing or the notice of dismissal established a prima facie showing of good cause for a late appeal.

Sproule v. Industrial Claim Appeals Office, 830 P.2d 1152 (Colo. App. 1992)

It is the claimant's responsibility to maintain an address where he or she can receive mail, even if it is only general delivery.

Gutierrez v. Industrial Claim Appeals Office, 841 P.2d 407 (Colo. App. 1992)

A private postage meter mark may constitute a "postmark," but if the postal service affixes a postmark with a different date, it is the date of that postmark that determines the date of filing.

Marquez v. Industrial Claim Appeals Office, 868 P.2d 1175 (Colo. App. 1994)

Where the claimant's benefits were reduced in addition to a ten-week postponement, the language used in the deputy's and hearing officer's decisions failed to inform the claimant of the amount of the reduction, which was administrative error.

Davis v. Industrial Claim Appeals Office, 982 P.2d 330 (Colo. App. 1999)

Language such as that used in the deputy's decision in this case, as affirmed by the hearing officer, was ambiguous and did not sufficiently advise the claimant of the effects of the disqualification, which was administrative error.

Representative Neglect

Trujillo v. Industrial Commission, 648 P.2d 1094 (Colo. App. 1982)

The negligence of the claimant's attorney in failing to file a timely appeal was a factor outside the claimant's control.

Albertsons, Inc. v. Industrial Commission, 735 P.2d 220 (Colo. App. 1987)

The employer's representative, who was not an attorney, failed to appear for a hearing because of various delays, and the employer's appeal was dismissed.  The court held that the negligence of a party's representative is a factor outside the party's control.

McGee v. Digital Equipment Corp., 856 P.2d 87 (Colo. App. 1993)

The neglect of a party's representative is only one factor in a determination of good cause, and is not dispositive.  Further, the nature of the neglect is a pertinent consideration.

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