Susan B. McClaflin, Petitioner,
v.
No. 05CA0057
Div. III
Steven U. Mullens, P.C., Steven U. Mullens, Colorado Springs,
Colorado, for Petitioner
John W. Suthers, Attorney General, Laurie
Rottersman, Assistant Attorney General, Denver, Colorado, for
Respondent Industrial Claim Appeals Office
No Appearance for Respondent Division of
Employment
HAWTHORNE, Judge.
Petitioner, Susan B. McClaflin (claimant), seeks
review of a final order of the Industrial Claim Appeals Office
(Panel) affirming a hearing officer’s decision determining that
claimant was ineligible to receive unemployment benefits. We affirm.
A deputy determined that claimant was ineligible
to receive benefits during the applicable period because she was not
actively seeking work as required under the statutory scheme. See §
8-73-107(1)(g)(I), C.R.S. 2005. Claimant appealed, and the matter
proceeded to a hearing. The hearing officer found that claimant, a
longtime employee of King Soopers (employer), was diagnosed with
carpal tunnel syndrome and was placed on leave, during which she had
surgery to correct her condition. He found that when claimant was
eventually released to work, employer did not provide claimant with
any work hours.
The hearing officer further found that claimant
then filed a claim for unemployment benefits but did not attempt to
seek other work, in part because her union agreement prohibited her
from seeking or accepting other employment. He found that seeking
other work could have jeopardized claimant’s “disability” (that is,
workers’ compensation) claim. Nevertheless, the hearing officer
found that, after filing her claim for unemployment benefits,
claimant, by her own admission, did not contact any other employers
and did not make an active search for work. After concluding that
the work search eligibility requirement was clear and unambiguous,
the hearing officer determined that claimant was ineligible to
receive benefits.
Claimant appealed the hearing officer’s decision,
and the Panel affirmed. The Panel concluded that the evidence
clearly established claimant did not seek work as required under the
statutory scheme. The Panel also concluded that claimant had failed
to demonstrate she should be exempt from the work search eligibility
requirement because of her circumstances.
On appeal, claimant contends that the Panel erred
in affirming the hearing officer’s decision that she was ineligible
to receive benefits. We disagree.
I.
Claimant first argues that she actually satisfied
the work seeking requirement because she sought work from employer.
However, claimant failed to raise this argument to the Panel.
Instead, claimant argued that she should be excused from the
workseeking requirement because of the potential consequences to her
employment status and her workers’ compensation claim. Indeed, in
her brief to the Panel, claimant essentially admitted that she did
not comply with the workseeking requirement and that she
“effectively elected the lesser of two evils” when she did not
actively seek work with another employer.
Under these circumstances, we decline to consider
this argument. See Hart v. Indus. Claim Appeals Office, 914
P.2d 406 (Colo. App. 1995) (appellate court declined to consider
issue because claimant failed to raise it before the Panel and,
therefore, failed to preserve it for review).
II.
Claimant also contends that the hearing officer
and the Panel should have excused her failure to satisfy the
workseeking requirement because application of that requirement is
inequitable under the circumstances. We perceive no error.
An unemployed individual is eligible to receive benefits with
respect to any week only if the Division finds that the individual
“is actively seeking work.” See § 8-73-107(1)(g)(I). Department of
Labor & Employment Regulation 2.8.4 provides that a claimant must
make reasonable and diligent efforts actively to seek suitable work
unless otherwise relieved of this requirement by virtue of (1)
participation in approved job training, (2) job attachment, or (3)
limited job opportunities pursuant to statute or regulation.
Fulfillment of this obligation is a prerequisite to receiving
unemployment compensation benefits. See Arteaga v. Indus. Claim
Appeals Office, 781 P.2d 98 (Colo. App. 1989).
Here, claimant has failed to demonstrate that any
of the three possible bases for relief from the workseeking
requirement was satisfied. Claimant clearly is not participating in
a job training program. Nor has she demonstrated, or even claimed,
that she is “job attached” as defined by Department of Labor &
Employment Regulation 2.8.2. Indeed, in an earlier decision in this
case, a hearing officer specifically determined that claimant was
not job attached. Finally, claimant is not faced with “limited job
opportunities,” which the regulations specifically limit to
circumstances in which a search for work would be fruitless “due to
economic conditions within the labormarket area.” See Dep’t
of Labor & Employment Reg. 2.8.4.5.
Claimant’s reliance on § 8-3-103, C.R.S. 2005, is
unavailing. The portion of that statute cited by claimant merely
provides that nothing in the Colorado Labor Peace Act shall be
construed to deprive an employee of unemployment benefits he or she
“might otherwise be entitled to receive under any other laws of the
state of Colorado.” Claimant fails to explain how that language
would render her eligible to receive unemployment benefits when she
is otherwise ineligible under the state statutory scheme.
Claimant further cites to § 8-73-108(1)(a), C.R.S.
2005, which sets forth the overarching principle that unemployment
insurance is for the benefit of persons who become unemployed
through no fault of their own. However, this statute addresses
entitlement rather than eligibility. See Arteaga v. Indus. Claim
Appeals Office, supra. Indeed, it specifies that “each
eligible individual who is unemployed through no fault of his
own shall be entitled to receive a full award of benefits” (emphasis
added). Once again, here claimant failed to establish that she was
eligible to receive benefits.
Claimant’s reliance on § 8-40-102(1), C.R.S.
2005, is equally unpersuasive. That subsection merely expresses the
General Assembly’s intent regarding the interpretation of Colorado’s
workers’ compensation statutes. It does not discuss unemployment
benefits much less authorize the modification or relaxation of
eligibility requirements for receiving such benefits.
In sum, claimant has failed to demonstrate that
the hearing officer or the Panel erred in declining to excuse her
from the statutory eligibility requirement of actively seeking work.
While claimant was certainly free, based upon her circumstances, to
refuse to seek work from other potential employers, we are not
persuaded that the unemployment fund should bear the expense of that
refusal. See Bayly Mfg. Co. v. Dep’t of Employment, 155 Colo.
433, 395 P.2d 216 (1964) (citing Hallahan v. Riley, 94 N.H.
48, 45 A.2d 886 (1946); unemployment statute was not designed to
finance apparently hopeless quest for claimant's old job or job
paying equal wages, and although claimant may continue to refuse
lower paying jobs, she must do so at her own expense rather than
that of the unemployment fund).
The order is affirmed.
Judge Graham concurs.
Judge Marquez dissents.
JUDGE MARQUEZ dissenting.
Because I believe that the Industrial Claim
Appeals Office (Panel) interprets the statute too narrowly, I
respectfully dissent.
Section 8-73-107(1)(g)(I), C.R.S. 2005, provides
in pertinent part that any unemployed individual shall be able to
receive benefits with respect to any week only if the Division finds
that:
He or she is actively seeking work. In
determining whether the claimant is actively seeking work,
the division, taking notice of the customary methods of
obtaining work and the claimant’s usual occupation, or any
occupation for which he or she is reasonably qualified, and
the current condition of the labor market, shall consider,
but shall not be limited to a consideration of,
whether, during said week, the claimant followed a course of
action that was reasonably designed to result in his or her
prompt reemployment in suitable work.
(Emphasis added.)
Here, in disallowing benefits, the hearing
officer found that claimant established a valid claim for
unemployment insurance benefits on April 14, 2003, having an
effective date of March 23, 2003. In addition to finding that
claimant did not contact any employers in her attempt to comply with
the Division’s requirement, the hearing officer found that claimant
repeatedly attempted to obtain work through her employer, but was
unsuccessful in her attempts, and that the employer was unwilling to
provide any hours of work for claimant. The hearing officer also
found that claimant did not seek other employment, “as her union
agreement prohibited the claimant from seeking or accepting
employment”: “Had the claimant sought other work, the claimant would
have been terminated from her employment with this employer. In
addition, by seeking or accepting other employment, the claimant
could have jeopardized her disability claim.”
The hearing officer characterized claimant’s
argument as seeking to be exempted from making an active work search
and ultimately determined that the Colorado Employment Security Act,
as well as the regulations, is clear and unambiguous in its
requirements. According to the hearing officer, to be eligible to
receive unemployment benefits, a person must make an active search
for work; claimant had not done so and thus had not satisfied the
requirements of the Act.
The Panel determined that the hearing officer’s
factual findings were not contrary to the weight of evidence in the
record and did not alter them. In affirming the hearing officer’s
decision, the Panel determined that claimant essentially conceded
she was not actively seeking work as required by § 8-73-107(1)(g)(I),
and the hearing officer therefore could properly conclude she was
not eligible to receive unemployment benefits.
The proper construction of a statute is a
question of law that we review de novo. Anderson v. Longmont
Toyota, Inc., 102 P.3d 323 (Colo. 2004). In construing statutes,
the primary duty of an appellate court is to give full effect to the
intent of the General Assembly. Thus, we apply the plain and
ordinary meaning of the statute. We read the statute as a whole and,
if possible, construe its terms harmoniously. We presume that the
General Assembly intended a just and reasonable result. Anderson
v. Longmont Toyota, Inc., supra.
Here, the Panel, like the hearing officer, denied
benefits because claimant was not seeking employment with other
employers. Nothing in § 8-73-107(1)(g)(I) requires such a search in
every case. Rather, the statute states that in determining whether
the claimant is actively seeking work, the Division shall consider,
“but shall not be limited to” a consideration of, whether the
claimant followed a course of action which was reasonably designed
to result in her prompt reemployment in suitable work.
While the majority states claimant argued she
should be excused from the requirement of seeking work, the record
reflects claimant argued that she was prohibited from seeking work
with any other employer because of the union contract. In her brief
before the Panel, she argued that she was prohibited by the labor
management agreement between King Soopers and her union from looking
for work outside of King Soopers.
The concept of “actively seeking work” is
incapable of precise definition, and it is for the appropriate
agency to make such a determination after considering all the facts
and circumstances in each particular case. Bayly Mfg. Co. v.
Dep't of Employment, 155 Colo. 433, 395 P.2d 216 (1964); see
Denver Post, Inc. v. Dep’t of Labor & Employment, 199 Colo. 466,
610 P.2d 1075 (1980). The record here reflects uncontested testimony
by claimant that she was subject to a negotiated labor agreement;
that she was restricted from looking for work elsewhere; that she
had worked for King Soopers for thirty years; and that if she looked
for work elsewhere, according to the agreement King Soopers would
terminate her.
In my view, the language of the statute, “but
shall not be limited to,” indicates that the phrase “actively
seeking work” does not require in every case that a claimant apply
to other possible employers.
