John E. Davis, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of
Colorado;
The Colorado Division of Employment and
Training;
and Dependable Cleaners &
Shirt Laundry, Respondents.
No. 98CA2243.
982 P.2d 330
Colorado
Court of Appeals,
Div. I.
May 27, 1999.
William E. Benjamin, Boulder, Colorado, for Petitioner.
Gale A. Norton, Attorney General, Martha Phillips Allbright,
Chief Deputy Attorney General, Richard A. Westfall, Solicitor
General, Jeannette Walker Kornreich, Assistant Attorney General,
Denver, Colorado, for Respondent Industrial Claim Appeals Office.
Beimford & Gleason, P.C., Richard J. Gleason, Denver, Colorado,
for Respondent Dependable Cleaners & Shirt Laundry.
METZGER, Judge.
In this unemployment compensation case, petitioner, John E. Davis
(claimant), seeks review of a final order of the Industrial Claim
Appeals Office (Panel) which dismissed his administrative appeal
from a hearing officer's adverse decision. Claimant's administrative
appeal to the Panel was not timely filed, and the Panel ruled that
good cause had not been shown for permitting the untimely appeal. We
set aside the order and remand for further proceedings.
Claimant was employed part-time as a presser for
respondent-employer, Dependable Cleaners and Shirt Laundry. Because
he refused to take lunch breaks (after not having done so during his
previous six years of employment), he was forced to resign.
Claimant then applied for unemployment benefits. A deputy of the
Division of Employment and Training issued a decision disqualifying
him from benefits pursuant to §
8-73-108(5)(e)(VI), C.R.S. 1998. The decision stated:
You were discharged for deliberate
disobedience of a reasonable instruction. The instruction
was normal for the job and was issued by proper authority.
It is determined that you are responsible for the separation
and a disqualification is being imposed.
The maximum benefits have been reduced by
the amount attributable to this employment and you cannot be
paid benefits for ten (10) weeks, from 08/09/98 through
10/17/98. After this time, you may claim any remaining
benefits if you continue to meet all weekly eligibility
requirements. The balance of your claim as of this mailing
date is $152.00.
This decision becomes final unless a
written appeal is filed within fifteen (15) calendar days
from the 'date mailed' above. If you file an appeal on this
decision, continue to mail your claim forms as instructed
while the appeal is being processed.
Please see reverse side of this form for
appeal information.
One of the paragraphs on the reverse side concerned filing a late
appeal:
Appeals submitted beyond the 15-day limit
must state the reason(s) why the appeal is late and the
facts supporting the reasons for acceptance of appeal. If
you fail to follow these steps, your appeal will be
dismissed and no file material will be sent.
Claimant, pro se, timely appealed that decision. After a hearing,
the referee determined claimant should be disqualified from
receiving benefits but gave a different reason, i.e.,
dissatisfaction with standard working conditions pursuant to §
8-73-108(5)(e)(I), C.R.S. 1998. That decision stated, in pertinent
part:
DECISION: It is determined that the
claimant is responsible for the separation from this
employment, and a disqualification is issued under §
8-73-108(5)(e)(I), C.R.S. Subject to the maximum amount
permitted by federal law, the claimant's maximum benefits
payable shall be reduced by the benefits attributable to
this employer on this claim and/or any future claim. In
addition, if this employment was the claimant's last
employment prior to filing the initial or additional claim,
there shall be a 10-week postponement of any benefits
remaining payable. The referee modifies the deputy's
decision and, as modified, affirms.
After an intervening statement concerning a claimant's possible
liability for repayment of benefits, there appear two printed
paragraphs under the heading of Appeal Rights. The first of these
states as follows:
Within fifteen calendar days from the
date mailed the interested parties may appeal this decision
to the Industrial Claim Appeals Office (ICAO) .... (emphasis
added)
The second paragraph sets out the procedures to be followed if
the appealing party had failed to attend the hearing.
In contrast to the advisement in the deputy's decision about the
effect of not timely appealing an adverse decision, no statement on
this point appears in the "REFEREE'S DECISION."
Claimant, by counsel, appealed the referee's decision 19 days
after it was issued, thus making his appeal four days late. His
attorney stated that, based on the 10-week postponement language in
the deputy's decision, claimant had believed he would begin
receiving benefits after 10 weeks had elapsed from the filing of his
claim. After his expected benefits failed to arrive, a customer
service representative of the division advised claimant that he had
no remaining benefits unless he filed an appeal. Claimant
immediately contacted counsel and filed an appeal the next business
day. Claimant requested that he be granted leave to appeal because
"the appeal time has so recently passed ... that no party would be
prejudiced," and because he was misled by the language concerning
the 10-week delay.
Concluding that claimant's appeal was untimely, the Panel
dismissed it. Applying the factors in Department of Labor and
Employment Regulation 12.1.8, 7 Code Colo. Reg. 1101-2, the Panel
found that, while the four-day delay in filing the appeal was not
substantial, and while "there is no evidence that any other
interested party has been prejudiced ... the language of the
decisions was sufficiently clear to have reasonably informed the
claimant of the adverse consequences of the disqualification. Thus,
there was no administrative error and the claimant did not act in a
reasonably prudent manner in failing to take timely action to
contest the hearing officer's decision."
On review, claimant contends the Panel erred in refusing "to find
good cause for a late appeal due to the ambiguous and unclear
advisements set forth in the referee's decision." We agree.
As pertinent here, we may set aside the Panel's decision only if
we determine that the decision is erroneous as a matter of law. See
§ 8-74-107(6)(d), C.R.S. 1998. Regulation 12.1.8 outlines the
substantive guidelines for the Panel in determining whether a party
has shown good cause for failing to file a timely appeal from a
referee's decision. Ambiguous advisements contained in
administrative rulings concerning a party's rights and need to
appeal may constitute "administrative error by the Division"
pursuant to Regulation 12.1.8 if the language of the advisement
would be confusing to a reasonable person in the claimant's position
and if it may have influenced the untimeliness of the action taken.
See Marquez v. Industrial Claim Appeals Office, 868 P.2d 1175
(Colo. App.1994).
For these orders to constitute adequate notice, they should not
be misleading in any material respect. Scofield v. Industrial
Commission, 697 P.2d 815 (Colo. App.1985).
Here, the referee's decision does not clearly set out the effect
of the disqualification determination on claimant's future
eligibility for benefits. Instead of advising him specifically that
he is disqualified from receiving 25 of his 26 weeks of benefits,
the language used in the decision, as quoted above, merely
references in general terms the limitations of federal law and the
benefits to be reduced.
Additionally, the decision did not advise claimant that he was
disqualified from receiving all but one week of benefits for the
entire benefit year, referencing instead a "10-week postponement."
This would seem to suggest to a reasonable person that benefits
would begin to be paid after 10 weeks had elapsed.
Consequently, we hold the technical and confusing nature of the
advisements in the referee's decision rendered them ambiguous.
Cf. Hart v. Industrial Claim Appeals Office, 914 P.2d 406 (Colo.
App.1995). These ambiguities, concerning the amount and timing of
benefits, constituted "administrative error" under Regulation
12.1.8. Thus, the Panel erred in finding that the language of the
advisements was "sufficiently clear."
The Panel generally has discretion to weigh the various factors
in Regulation 12.1.8 to determine whether a claimant has shown good
cause for an untimely appeal. Here, the Panel concluded that, while
the other factors in the regulation would favor allowing a late
appeal, they did not "outweigh the absence of any reasonable
justification [of ambiguous notice] for the claimant's failure to
take timely action." Because we have determined that that conclusion
constituted error, we hold good cause has been shown for the
untimely appeal.
The order is set aside and the cause is remanded for further
proceedings on claimant's appeal of the denial of benefits.
Judge Taubman and Judge Casebolt concur.
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