Judy L. Sands, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of Colorado,
the
Colorado Division of Employment and Training and
McData Corporation,
Respondents.
No. 89CA1643.
801 P.2d 12
Colorado
Court of Appeals,
Div. II.
Aug. 2, 1990.
Rehearing
Denied Aug. 23, 1990.
Certiorari Denied Nov. 26,
1990.
William E. Benjamin, Boulder, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Michael J. Steiner, Asst. Atty.
Gen., Denver, for respondents Indus. Claim Appeals Office and
Colorado Div. of Employment and Training.
Hutchinson, Black, Hill & Cook, John B. Greer, Boulder, for
respondent McData Corp.
STERNBERG, Chief Judge.
Judy L. Sands, claimant, seeks review of a final order of the
Industrial Claim Appeals Office (Panel) which disqualified her from
the receipt of unemployment compensation benefits. We affirm.
Claimant worked for McData Corporation as a systems test
technician. She was to return from an authorized vacation on a
Monday morning, but instead returned the next day, Tuesday. On
Friday, employer terminated her for accumulated excessive absences
and for failure to report back from vacation on time without notice.
Based upon conflicting evidence, the hearing officer concluded
claimant was discharged for returning to work one day late after a
scheduled vacation with no valid reason or permission for her
delayed return. The hearing officer disqualified claimant from the
receipt of benefits pursuant to Sec. 8-73-108(5)(e)(XVII), C.R.S.
(1986 Repl.Vol. 3B) (failure to return to work after authorized
vacation), and the Panel affirmed.
We do not agree with claimant's contention that the hearing
officer erred in excluding evidence she sought to present that
illness prevented her from returning to work the day after her
vacation. Division of Employment Regulation 11.2.9, 7 Code Colo.Reg.
1101-2, provides, in pertinent part:
"An interested party may not present factual issues at a hearing
before a referee which have not been provided to the other
interested party(ies) as shown by the claim file. If good cause, as
set forth in subsection 12.1.8 of these regulations, is found for a
party not providing proper notice of the factual issues it intends
to present, the referee may adjourn the hearing. If good cause is
not found, the hearing shall proceed as scheduled and those new
factual issues raised shall not be considered. An interested party
may at the hearing waive the requirement that it be provided with
proper notice...."
This regulation reflects a change in wording so as to make
inapposite the holding of earlier cases such as Anderson v.
Industrial Commission, 29 Colo.App. 263, 482 P.2d 403 (1971).
The explanation of appeal rights set forth in the notice of
decision given the claimant provided, in relevant part: "A party may
not present evidence before a referee on factual issues which have
not been provided to the other party as shown by the claims file or
as provided in the notice of appeal unless good cause is shown...."
The relevant documents in the claim file which set forth
claimant's basis for her claim were the request for separation; the
Division's fact-finding supplement; and claimant's notice of appeal.
None of these documents made reference to a specific health problem
as the cause for claimant's absence. To the contrary, on the request
for separation form, claimant stated that a delay in her travel
arrangements had resulted in her not reporting for work on Monday.
Consistent with that statement, claimant told a job service
representative that her late arrival home had caused her to be "too
tired and exhausted" to report on Monday. On her notice of appeal
claimant simply stated, "I disagree with the deputy's findings."
The explanation that illness caused her absence was raised by
claimant for the first time at the hearing. When asked by the
hearing officer why she was absent that Monday, claimant replied
that she had been incapacitated by diarrhea. The hearing officer
then questioned whether the claimant's response raised a new factual
issue concerning claimant's entitlement to benefits which had not
been provided to employer either in the claims file or the notice of
appeal and whether claimant had good cause for not providing the
information.
After hearing arguments on the issue, the hearing officer found
that claimant's testimony that a specific health problem prevented
her from returning to work was a new factual issue which had not
been provided to employer prior to the hearing. The hearing officer
also found that, since the day she returned to work, claimant had
had a substantial number of opportunities to mention a specific
health problem both to the employer and the Division and that she
had not done so. The hearing officer concluded that claimant had not
shown "good cause" for her failure to disclose the new issue prior
to the hearing and refused to allow claimant to present evidence of
a specific health problem at the hearing.
Claimant now argues she should have been allowed to present this
testimony because it was not a new factual issue. We agree with the
Panel that claimant's testimony concerning a "specific health
problem" was a new factual issue which had not been adequately
raised by claimant prior to the hearing.
Claimant argues that her statement of being "too tired and
exhausted" provided adequate notice because "it is clear that
fatigue and exhaustion are physical effects of diarrhea." Considered
in context with her other statements concerning travel delays, we
conclude that her reference to being exhausted was insufficient to
put her employer on notice that a specific illness had been the
reason for her failure to report for work. Consequently, claimant's
argument is not persuasive.
We also find no merit to claimant's argument that she should have
been allowed to present evidence of her specific illness as a
defense to the application of Sec. 8-73-108(5)(e)(XVII), the section
under which the deputy disqualified her. If claimant desired to
raise her specific alleged illness as a defense to the application
of Sec. 8-73-108(5)(e)(XVII), Division of Employment Regulation
11.2.9 required her to state her factual defense in her notice of
appeal. Because she did not do so, there was no error in not
accepting evidence on this point.
Finally, the claimant asserts that the hearing officer's order
did not adequately address all factors raised in deciding whether
claimant had shown good cause for raising a new issue at the
hearing. The findings indicate that the relevant issues were
considered. Thus, error is not to be inferred from the failure to
enter written findings on every factor. See Mohawk Data Sciences
Corp. v. Industrial Commission, 671 P.2d 1335 (Colo.App.1983).
The order is affirmed.
Hume and Ruland, JJ., concur.
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