24CA1763 Krause v ICAO 04-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1763 Industrial Claim Appeals Office of the State of Colorado DD No. 12336-2024
Thomas Krause,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Yelp Inc.,
Respondents.
ORDER SET ASIDE
Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025
Thomas Krause, Pro Se
No Appearance for Respondents ¶1 In this unemployment benefits case, claimant, Thomas
Krause, seeks review of a final order of the Industrial Claim Appeals
Office (Panel) allowing his former employer, Yelp Inc.’s, late appeal
of his benefits award and reversing that award. This case concerns
whether Yelp received notice of Krause’s benefits award and an
opportunity to contest it. We set aside the Panel’s order.
I. Procedural Background
¶2 The following procedural facts are undisputed.
¶3 In early 2022, Krause filed his claim for benefits in connection
with his brief employment with Yelp in 2021. On May 16, 2022, the
Division of Unemployment Insurance (Division) contacted Yelp, via
phone and mail, requesting information to assist in adjudicating
Krause’s claim. Yelp did not respond to that request until June 13,
2022. In the meantime, on June 3, 2022, a deputy for the Division
issued a determination that Krause was entitled to benefits (benefits
award). Three days later, in a Notice of Determination dated June
6, 2022, the deputy notified Yelp that, by failing to timely respond
to the Division’s request for information, Yelp had forfeited its
appellate rights (the forfeiture decision):
1 Employer: You have lost your right to protest this decision. You did not respond to our request for facts about a former employee’s employment within the time limit specified by Regulation 7.2.
However, the deputy explained, Yelp could appeal the forfeiture
decision within twenty days:
You may appeal this denial by submitting a signed statement, within 20 calendar days of this notice, with your reasons for not acting timely.
It is undisputed that Yelp received the forfeiture decision, including
the instructions for appealing, and did not timely appeal it.
¶4 From this point through November 2023 — a span of
seventeen months — the history of communications between Yelp
and the Division is less clear. Nonetheless, it is undisputed that a
hearing officer for the Division issued an order finding that, on
November 28, 2023, Yelp filed an appeal of the benefits award. The
hearing officer further found that, because Yelp filed its appeal
more than 180 days late, Regulation 12.1.3.2. mandated dismissal.
¶5 Yelp sought review from the Panel. The Panel inferred that
Yelp had not timely received notice of the benefits award and that
this delay precluded Yelp from timely appealing it. As a result, the
2 Panel remanded the case to the hearing officer and noted that, on
remand, Krause could challenge “the factual basis of the alleged
due process violation that caused the employer’s late appeal of the
deputy’s decision.”
¶6 Following an evidentiary hearing, the hearing officer found
that Yelp’s “appeal of the [benefits award] was received on
November 28, 2023, which was 523 days late. However, he also
found that Yelp “did not know of the existence of the [benefits
award] until November of 2023[,]” upon receiving a letter from the
Division referencing that decision. Because Yelp could not “timely
appeal a decision that [it was] not aware of[,] . . . it [would be] a
denial of due process not to allow the appeal to proceed.”
Accordingly, the hearing officer held that Yelp was not barred from
appealing the deputy’s benefits award. The hearing officer further
concluded that Krause was disqualified from receiving benefits and
reversed the benefits award.
¶7 Krause appealed the hearing officer’s decision to the Panel,
arguing, in part, that the hearing officer erred in finding Yelp first
learned of the benefits award in November 2023. The Panel
affirmed the hearing officer’s findings and conclusions, and further
3 found that the Division had mailed the benefits award to an
outdated address for Yelp, despite knowing Yelp’s current address:
We would also point out that although the Division was aware of [Yelp’s] new address on Mission Street, see Docket 33263-2023, Exhibit AA at 23, the Division mailed the June 3, 2022, deputy’s decision to the employer’s previous address on New Montgomery Street, see id. at 3; tr. at 26. This constituted administrative error and a denial of due process.
II. Standard of Review
¶8 Under section 8-74-107, C.R.S. 2024, we may not disturb
factual findings “supported by substantial evidence” and may only
set aside the Panel’s decision if (1) the Panel acted without or in
excess of its powers; (2) the decision was procured by fraud; (3) the
factual findings do not support the decision; or (4) the decision is
erroneous as a matter of law. Substantial evidence is “probative,
credible, and competent, of a character which would warrant a
reasonable belief in the existence of facts supporting a particular
finding.” Rathburn v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App.
1977). Thus, mere conclusions do not suffice. Wecker v. TBL
Excavating, Inc., 908 P.2d 1186, 1188-89 (Colo. App. 1995)
(“[E]vidence is not substantial if it . . . constitutes a mere
4 conclusion.”). We decide as a matter of law whether substantial
evidence exists. Pub. Serv. Co. of Colo. v. Pub. Utils. Comm’n, 26
P.3d 1198, 1205 (Colo. 2001).
III. Analysis
¶9 Because Krause represents himself, we construe his
arguments liberally, giving effect to their substance rather than
form. Jones v. Williams, 2019 CO 61, ¶ 5. On appeal, Krause
challenges the factual findings underlying the due process violation
determination. We understand that challenge, when viewed in the
context of the governing legal framework, as an argument that no
substantial evidence supports the hearing officer’s finding that Yelp
“was not aware of” the benefits award until November 2023.
Because we agree with Krause, we do not address his alternative
argument regarding the merits of his benefits claim.
¶ 10 At the evidentiary hearing, Yelp presented its case-in-chief
through Associate General Counsel Connie Sardo. During Sardo’s
presentation, the hearing officer commented that the benefits award
did not “have any Employer address on it at all.” Sardo agreed,
adding that she had “scoured our company records related to this
matter, and at no point in this timeframe did we receive anything
5 dated June 3rd.” This exchange appears to be the basis for the
hearing officer’s finding that Yelp never received the benefits award.
¶ 11 However, when he determined that the benefits award did not
list Yelp’s address, the hearing officer was looking at a copy of the
benefits award Krause included in his omnibus trial exhibit. True,
Krause’s trial exhibit included a copy of the benefits award that was
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24CA1763 Krause v ICAO 04-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1763 Industrial Claim Appeals Office of the State of Colorado DD No. 12336-2024
Thomas Krause,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Yelp Inc.,
Respondents.
ORDER SET ASIDE
Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025
Thomas Krause, Pro Se
No Appearance for Respondents ¶1 In this unemployment benefits case, claimant, Thomas
Krause, seeks review of a final order of the Industrial Claim Appeals
Office (Panel) allowing his former employer, Yelp Inc.’s, late appeal
of his benefits award and reversing that award. This case concerns
whether Yelp received notice of Krause’s benefits award and an
opportunity to contest it. We set aside the Panel’s order.
I. Procedural Background
¶2 The following procedural facts are undisputed.
¶3 In early 2022, Krause filed his claim for benefits in connection
with his brief employment with Yelp in 2021. On May 16, 2022, the
Division of Unemployment Insurance (Division) contacted Yelp, via
phone and mail, requesting information to assist in adjudicating
Krause’s claim. Yelp did not respond to that request until June 13,
2022. In the meantime, on June 3, 2022, a deputy for the Division
issued a determination that Krause was entitled to benefits (benefits
award). Three days later, in a Notice of Determination dated June
6, 2022, the deputy notified Yelp that, by failing to timely respond
to the Division’s request for information, Yelp had forfeited its
appellate rights (the forfeiture decision):
1 Employer: You have lost your right to protest this decision. You did not respond to our request for facts about a former employee’s employment within the time limit specified by Regulation 7.2.
However, the deputy explained, Yelp could appeal the forfeiture
decision within twenty days:
You may appeal this denial by submitting a signed statement, within 20 calendar days of this notice, with your reasons for not acting timely.
It is undisputed that Yelp received the forfeiture decision, including
the instructions for appealing, and did not timely appeal it.
¶4 From this point through November 2023 — a span of
seventeen months — the history of communications between Yelp
and the Division is less clear. Nonetheless, it is undisputed that a
hearing officer for the Division issued an order finding that, on
November 28, 2023, Yelp filed an appeal of the benefits award. The
hearing officer further found that, because Yelp filed its appeal
more than 180 days late, Regulation 12.1.3.2. mandated dismissal.
¶5 Yelp sought review from the Panel. The Panel inferred that
Yelp had not timely received notice of the benefits award and that
this delay precluded Yelp from timely appealing it. As a result, the
2 Panel remanded the case to the hearing officer and noted that, on
remand, Krause could challenge “the factual basis of the alleged
due process violation that caused the employer’s late appeal of the
deputy’s decision.”
¶6 Following an evidentiary hearing, the hearing officer found
that Yelp’s “appeal of the [benefits award] was received on
November 28, 2023, which was 523 days late. However, he also
found that Yelp “did not know of the existence of the [benefits
award] until November of 2023[,]” upon receiving a letter from the
Division referencing that decision. Because Yelp could not “timely
appeal a decision that [it was] not aware of[,] . . . it [would be] a
denial of due process not to allow the appeal to proceed.”
Accordingly, the hearing officer held that Yelp was not barred from
appealing the deputy’s benefits award. The hearing officer further
concluded that Krause was disqualified from receiving benefits and
reversed the benefits award.
¶7 Krause appealed the hearing officer’s decision to the Panel,
arguing, in part, that the hearing officer erred in finding Yelp first
learned of the benefits award in November 2023. The Panel
affirmed the hearing officer’s findings and conclusions, and further
3 found that the Division had mailed the benefits award to an
outdated address for Yelp, despite knowing Yelp’s current address:
We would also point out that although the Division was aware of [Yelp’s] new address on Mission Street, see Docket 33263-2023, Exhibit AA at 23, the Division mailed the June 3, 2022, deputy’s decision to the employer’s previous address on New Montgomery Street, see id. at 3; tr. at 26. This constituted administrative error and a denial of due process.
II. Standard of Review
¶8 Under section 8-74-107, C.R.S. 2024, we may not disturb
factual findings “supported by substantial evidence” and may only
set aside the Panel’s decision if (1) the Panel acted without or in
excess of its powers; (2) the decision was procured by fraud; (3) the
factual findings do not support the decision; or (4) the decision is
erroneous as a matter of law. Substantial evidence is “probative,
credible, and competent, of a character which would warrant a
reasonable belief in the existence of facts supporting a particular
finding.” Rathburn v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App.
1977). Thus, mere conclusions do not suffice. Wecker v. TBL
Excavating, Inc., 908 P.2d 1186, 1188-89 (Colo. App. 1995)
(“[E]vidence is not substantial if it . . . constitutes a mere
4 conclusion.”). We decide as a matter of law whether substantial
evidence exists. Pub. Serv. Co. of Colo. v. Pub. Utils. Comm’n, 26
P.3d 1198, 1205 (Colo. 2001).
III. Analysis
¶9 Because Krause represents himself, we construe his
arguments liberally, giving effect to their substance rather than
form. Jones v. Williams, 2019 CO 61, ¶ 5. On appeal, Krause
challenges the factual findings underlying the due process violation
determination. We understand that challenge, when viewed in the
context of the governing legal framework, as an argument that no
substantial evidence supports the hearing officer’s finding that Yelp
“was not aware of” the benefits award until November 2023.
Because we agree with Krause, we do not address his alternative
argument regarding the merits of his benefits claim.
¶ 10 At the evidentiary hearing, Yelp presented its case-in-chief
through Associate General Counsel Connie Sardo. During Sardo’s
presentation, the hearing officer commented that the benefits award
did not “have any Employer address on it at all.” Sardo agreed,
adding that she had “scoured our company records related to this
matter, and at no point in this timeframe did we receive anything
5 dated June 3rd.” This exchange appears to be the basis for the
hearing officer’s finding that Yelp never received the benefits award.
¶ 11 However, when he determined that the benefits award did not
list Yelp’s address, the hearing officer was looking at a copy of the
benefits award Krause included in his omnibus trial exhibit. True,
Krause’s trial exhibit included a copy of the benefits award that was
addressed only to him, but that seems unremarkable, as it was his
copy, not Yelp’s. So that exhibit sheds no light on whether Yelp
also received a copy of the benefits award. It certainly does not give
rise to a reasonable inference that Yelp never received a copy.
¶ 12 In fact, a copy of the benefits award submitted by the Division
was also admitted into evidence, though the hearing officer did not
acknowledge it. That copy was addressed to Yelp, albeit at its
former address, forwarding service requested.
¶ 13 The record suggests that the benefits award was in fact
forwarded. During the hearing, Sardo pointed the hearing officer to
a document included in Yelp’s omnibus trial exhibit — an envelope
from the Division to Yelp, at its former address, stamped June 3,
2022. A label on that envelope shows the post office forwarded it to
Yelp’s current address on June 22, 2022. And Yelp indisputably
6 received the envelope because Yelp included it in its own trial
exhibit, and nothing in the record suggests Yelp conducted any pre-
hearing discovery. Thus, to the extent the hearing officer credited
Sardo’s testimony that Yelp never “receive[d] anything dated June
3,” we conclude that the hearing officer erred because that
testimony is unsupported by the record. See Halliburton Servs. v.
Miller, 720 P.2d 571, 578 (Colo. 1986) (witness testimony must be
overwhelmingly rebutted by hard, certain evidence directly to the
contrary for the hearing officer’s credibility determinations to be
overturned).
¶ 14 Thus, no substantial evidence supports the hearing officer’s
finding that Yelp never received the benefits award. Similarly,
though the Panel correctly noted that the Division sent notice of the
benefits award to Yelp at its previous address, this fact does not
show that Yelp never received the notice, and thus the Panel erred
in concluding that the wrongly addressed notice established a due
process violation.
¶ 15 Regardless, irrespective of whether Yelp received the benefits
award, the forfeiture decision placed Yelp on notice of the benefits
award, and Yelp acknowledges it received the forfeiture decision on
7 June 27, 2022 — well before the 180-day time bar. See Dep’t of
Lab. & Emp. Reg. 12.1.3.2, 7 Code Colo. Regs. 1101-2. Moreover,
Yelp’s ability to pursue relief as to the benefits award was expressly
predicated on Yelp successfully appealing the forfeiture decision,
and Yelp failed to present evidence at the hearing demonstrating
that it did so. Nor did it present any argument or evidence
explaining that failure.
¶ 16 Indeed, Sardo testified that Yelp delivered an appeal of the
June 6 forfeiture decision on August 11, 2022, via fax. Because
that alleged filing date fell within 180 days of the issuance of the
June 6 forfeiture decision, Regulation 12.1.3.1 required that the
Division schedule a hearing. Dep’t of Lab. & Emp. Reg. 12.1.3.1, 7
Code Colo. Regs. 1101-2. But Yelp failed to produce any evidence
of a hearing notice — or any evidence that it made reasonable and
timely attempts to follow up with the Division to schedule a
hearing.1 More importantly, Yelp failed to produce a copy of its
alleged August 11 submission or testimony from anyone with
1 In November 2022 correspondence with the Division, Yelp stated it
submitted an appeal on August 11. But Yelp characterized it as an appeal of the underlying benefits award, not the June 6 forfeiture decision, and failed to attach a copy of the alleged appeal.
8 personal knowledge of its transmission or contents. In short, Yelp
failed, as a matter of law, to demonstrate that it met the conditions
precedent to appealing the benefits award or that it is otherwise
owed further process.
IV. Disposition
¶ 17 The Panel’s order is set aside.
JUDGE HARRIS and JUDGE PAWAR concur.