Jesus Marquez, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of
Colorado; The Colorado Division of Employment and
Training; and Qiviut, Inc., Respondents.
No. 93CA0433.
868 P.2d 1175
Colorado Court of Appeals,
Div. I.
Jan. 27, 1994.
William E. Benjamin, Boulder, for petitioner.
No appearance for respondent Industrial Claim Appeals Office.
No appearance for respondent Qiviut, Inc.
PIERCE, Judge.*
In this unemployment compensation benefits case, Jesus Marquez
(claimant) seeks review of a final order of the Industrial Claim
Appeals Panel which determined that he failed to show good cause for
his untimely filing of an appeal from an hearing officer's order
adverse to him. The Panel dismissed the appeal. We set aside the
Panel's order and remand with directions.
After claimant applied for unemployment compensation benefits, a
deputy disqualified him from the receipt of benefits pursuant to
Sec. 8-73-108(5)(e)(VII), C.R.S. (1986 Repl.Vol. 3B). Claimant
appealed that decision. After a hearing, the hearing officer
disqualified him from the receipt of benefits pursuant to Sec.
8-73-108(5)(e)(VI), C.R.S. (1986 Repl.Vol. 3B). Claimant did not
appeal this determination.
Claimant asserts that he later applied for federal extended
unemployment benefits and was denied the benefits on the ground that
he had been disqualified from benefits under the state unemployment
compensation benefits scheme. In an attempt to have his
disqualification set aside, claimant filed a late appeal of the
hearing officer's determination and requested that the Panel find
good cause for his untimely appeal.
As grounds for the good cause determination, claimant argued that
the advisements on the deputy's and hearing officer's decisions were
ambiguous and unclear and he therefore misunderstood the effects of
the disqualification on his ability to obtain benefits.
The deputy's decision contained the following language:
The Division finds you were responsible
for the separation and a disqualification is being imposed.
Payment of benefits is deferred from
August 30, 1992 to November 7, 1992. Benefits based on this
employment will be reduced by the maximum amount permitted
by federal law on this claim as well as any future claim
filed.
The decision paragraph of the hearing officer's order contained
the following language:
It is determined that Section
8-73-108(5)(e)(VI), C.R.S. applies, and that claimant's
maximum benefits payable are reduced by the benefits
attributable to this employment. Additionally, benefits
shall be delayed for a period of ten weeks.
The decision of the deputy is affirmed as
modified.
Claimant argued that he understood the language concerning the
"reduction" of, "delay," and "deferral" of benefits to mean that he
would at some time in the future receive a reduced amount of
benefits and that he therefore did not need to appeal the hearing
officer's order. The Panel determined that claimant had been
sufficiently advised of the effects of the hearing officer's
determination and that he thus had failed to show good cause for his
late appeal.
Relying on Richardson v. Freund & Co., 755 P.2d 1
(Colo.App.1988), claimant contends that the Panel erred in failing
to find that the ambiguous advisements on the deputy's and hearing
officer's orders constituted "administrative error by the Division"
pursuant to Department of Labor & Employment Regulation 12.1.8, 7
Code Colo.Reg. 1101-2. We agree.
Regulation 12.1.8. sets forth the substantive guidelines for the
Panel to use in determining whether a party has shown good cause for
its failure to file a timely appeal from a hearing officer's
decision. It states that the Panel is to consider any relevant
factors including, but not limited to, certain factors set forth in
the regulation. Among the listed factors is "administrative error by
the Division."
We agree with claimant that the language of the deputy's and
hearing officer's orders concerning the effect of a disqualification
on his receipt of benefits is confusing to a reasonable person in
his position.
The advisements were couched in language indicating there would
be a "reduction" of, "deferral," and "delay" in claimant's receipt
of benefits. These are procedural terms of art used in the
application of the unemployment compensation statute, and, when so
used, they do not necessarily have their dictionary meaning.
Even assuming claimant is presumed to know the contents of the
statute, see Paul v. Industrial Commission, 632 P.2d 638
(Colo.App.1981), we note that neither the statute nor pertinent
regulations explain the effect of the application of these terms on
a claimant's receipt of benefits. See Sec. 8-73-108(5)(e), C.R.S.
(1986 Repl.Vol. 3B). Therefore, it was reasonable for claimant to
conclude that a "reduction," "deferral," or "delay" in the receipt
of his benefits meant that he still would receive, at some point in
the future, a lowered amount of benefits.
Furthermore, the hearing officer's order, unlike the deputy's,
did not contain any reference to a reduction of benefits on future
claims. Thus, it was also reasonable for him to assume that he later
might qualify for federal extended emergency benefits under Sec.
8-75-103.5(8), C.R.S. (1986 Repl.Vol. 3B).
We also agree with claimant that the Division can easily revise
its advisements so they are worded in plain English understandable
to a reasonable person in claimant's position, rather than in legal
jargon.
Thus, given the ambiguous and confusing nature of these
advisements, the Panel erred in failing to determine that the
cumulative effect of these ambiguous advisements constituted
"administrative error by the Division" pursuant to Regulation
12.1.8.
The Panel has discretion to weigh the various factors found in
Regulation 12.1.8 to determine whether a claimant has shown good
cause for an untimely appeal of a hearing officer's decision. The
Panel here, however, failed to find, and then failed to consider
this factor when it considered the other factors set forth in the
regulation. We therefore conclude that the Panel's order must be set
aside and the matter remanded for reconsideration of whether, in
light of the "administrative error," claimant showed good cause for
his untimely appeal.
In so ruling, we reject claimant's argument that the hearing
officer's order did not sufficiently advise him that the order would
become final if he did not appeal it within 15 days. The first
paragraph under the section entitled "APPEAL RIGHTS" stated: "WITHIN
FIFTEEN DAYS FROM THE DATE MAILED the claimant or employer may
appeal this to the Industrial Claim Appeals Office (ICAO)." The
following paragraphs explained the appeal process.
It would have been preferable for the advisement to state
specifically that the decision would become "final" if not timely
appealed. However, the advisement was sufficient to put a reasonable
person on notice that the hearing officer's decision had to be
appealed within 15 days.
We decline to reach claimant's due process argument, as it was
not raised before the Panel and therefore was not properly preserved
for our review. See Apache Corp. v. Industrial Commission,
717 P.2d 1000 (Colo.App.1986).
The order of the Panel is set aside, and the cause is remanded to
the Panel for it to reconsider, in light of our disposition, whether
claimant showed good cause for his untimely appeal.
Criswell and Rothenberg, JJ., concur.
* Sitting by assignment of the Chief Justice
under provisions of the Colo.Const. art. VI, Sec. 5(3), and Sec.
24-51-1105, C.R.S. (1988 Repl.Vol. 10B).
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