Nelsen v. ICAO

• Court: Colorado Court of Appeals
• Decided: October 24, 2024
• Docket: 24CA1398
• Status: Unpublished

Opinion

24CA1398 Nelsen v ICAO 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1398 Industrial Claim Appeals Office of the State of Colorado DD No. 17086-2024

Cody Nelsen,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Latcon Corp,

Respondents.

ORDER AFFIRMED

Division VI Opinion by JUDGE WELLING Brown and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024

Cody Nelsen, Pro Se

No Appearance for Respondents

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this unemployment benefits case, claimant, Cody Nelsen,

seeks review of a final order of the Industrial Claim Appeals Office

(Panel). The Panel affirmed the hearing officer’s dismissal of

Nelsen’s appeal of the deputy’s decision because the appeal was

filed more than 180 days late, requiring dismissal regardless of a

claim of good cause for the late filing. We affirm the Panel’s order.

I. Background

¶2 On November 29, 2023, a deputy for the Division of

Unemployment Insurance determined that Nelsen was ineligible to

receive unemployment benefits because he quit his employment

with Latcon, Corp. to accept other employment and, therefore, was

responsible for the job separation.

¶3 On June 21, 2024, Nelsen appealed the deputy’s

determination, stating that he quit that job to take another job

because Latcon didn’t have another project for him and he believed

the work environment was “extremely unsafe.” He also indicated

that he filed the appeal late because “[he] did not know this was on

[his] claim,” and “[he] did not know how to file an appeal.”

¶4 On June 24, 2024, a hearing officer for the Division dismissed

the appeal. The notice of dismissal explained that because the

1 appeal was received more than 180 days late, Department of Labor

and Employment Regulation 12.1.3.2, 7 Code Colo. Regs. 1101-2,

required that it be dismissed without a hearing.

¶5 Nelsen timely appealed the hearing officer’s decision to the

Panel. To determine whether Nelsen was denied due process, the

Panel asked him whether he had received the November 28, 2023,

decision by the deputy, and, if so, why he didn’t appeal before the

December 19, 2023, due date. In response, Nelsen stated that he

was “notified” of the deputy’s decision on November 29, 2023, but

that he didn’t appeal the decision before the deadline because he

“did not see” the notice until June 2024 and did not know how to

appeal it until he went in person to the Department of Labor.

¶6 Accepting Nelsen’s assertions as true, the Panel inferred that

Nelsen had timely received the deputy’s decision, but that he failed

to timely appeal that decision because he either (1) did not

completely read or misread the decision which informed him that

the decision would become final if no appeal was filed within twenty

days from the mailing of the decision; or (2) chose not to appeal for

personal reasons. Noting that Nelsen filed his appeal of the

deputy’s decision more than 180 days late, the Panel concluded

2 that the hearing officer correctly applied Regulation 12.1.3.2, which

requires dismissal of appeals that are filed more than 180 days late,

and affirmed the hearing officer’s dismissal of Nelsen’s appeal from

the deputy’s determination.

II. Discussion

¶7 On appeal, Nelsen explains why he quit his job but doesn’t

otherwise address the Panel’s order affirming the hearing officer’s

decision dismissing his appeal because he filed it more than 180

days late.

¶8 We may set aside the Panel’s decision only if (1) the Panel

acted without or in excess of its powers; (2) the decision was

procured by fraud; (3) the findings of fact don’t support the

decision; or (4) the decision is erroneous as a matter of law. § 8-74-

107(6)(a)-(d), C.R.S. 2024.

¶9 An appeal of a deputy’s decision must be submitted within

twenty calendar days after the date of notification of such decision.

§ 8-74-106(1)(a), C.R.S. 2024. Generally, a hearing officer may

accept a late appeal for good cause shown and in accordance with

rules adopted by the director of the Division. § 8-74-106(1)(b).

However, if an appeal is more than 180 days late, “good cause may

3 not be established, a hearing shall not be scheduled, the appeal

shall be dismissed, and the deputy’s decision shall become final.”

Dep’t of Lab. & Emp. Reg. 12.1.3.2., 7 Code Colo. Regs. 1101-2.

¶ 10 Nelsen’s appeal, which was due on or before December 19,

2023, was filed on June 21, 2024, 185 days late. We agree with the

Panel that because Nelsen appealed the deputy’s decision more

than 180 days after it was issued, Regulation 12.1.3.2 required the

hearing officer to dismiss the appeal. See Dep’t of Revenue v.

Agilent Techs., Inc., 2019 CO 41, ¶ 25 (when a regulation’s language

is clear and unambiguous, it must be applied as written); Mesa

Cnty. Pub. Libr. Dist. v. Indus. Claim Appeals Off., 2017 CO 78, ¶ 17

(a reviewing court is bound by the hearing officer’s and the Panel’s

findings of fact that are supported by substantial evidence in the

record).

III. Disposition

¶ 11 We affirm the Panel’s order.

JUDGE BROWN and JUDGE HAWTHORNE concur.