7 CCR 1101-2-11.2 - APPEALS PROCEDURE
11.2.1
Statutory References: 8-72-108,
8-74-101 to 8-74-109, 8-76-103 (4),
8-76-113, and 8-80-102, C.R.S.
11.2.2
Scope of Section. The
procedures described herein deal with appeals on disputed claims under
8-74-101, et. seq., C.R.S.; appeals from determinations of liability,
determinations of coverage, and seasonality determinations under
8-76-113(1),
C.R.S.; appeals from redeterminations regarding quarterly statements of
benefits charged to an employer's account under
8-76-103(4),
C.R.S.; appeals from redeterminations as to an assessment of taxes, rate of
tax, recomputation of rate, or correction of any such matter under
8-76-113(2),
C.R.S.; redeterminations of reimbursement billings under
8-76-110(3)(e),
C.R.S.; appeals from redeterminations of monetary eligibility under
8-74-102(2),
C.R.S.; and appeals from eligibility determinations regarding enhanced
unemployment insurance compensation under
8-73-114, C.R.S., as defined in
regulation 2.6.4.
11.2.3
Procedure for Filing Appeals to Hearing Officer. Appeals from
decisions of a deputy on a claim for benefits, from premium liability and
coverage determinations, from seasonality determinations, and from
redeterminations shall be by written notice of appeal that should state
specific reasons. However, any written statement expressing disagreement with a
determination or the party's desire for review shall be accepted as an appeal.
An appeal that does not state specific reasons must be supplemented prior to
the appeal hearing and provided to the other interested parties in time to be
received before the date of the hearing, as required by rule 11.2.9.4 , or the
specific factual issues may be excluded from the hearing. An appeal shall be
filed by mail at the address designated in the notice of decision, or may be
filed in person, by facsimile machine, or by division-approved electronic
means. For purposes of this rule 11.2.3 , the term "written" shall have the
meaning set forth in rule 1.3.11 . The notices of appeal in matters involving a
disputed claim may also be filed with a public employment office. The division
shall provide a copy of such notice of appeal to each interested party. When an
appeal of a deputy's decision on a claim for benefits is received, the division
shall provide to interested parties and their authorized representatives, if
any, copies of relevant separation information in the claim file submitted by
the parties. The division shall also provide to interested parties and their
authorized representatives, if any, a copy of the form(s) used to document
additional fact-finding information and to reflect those issues considered in
rendering the decision.
11.2.4
Notice of Hearing. Notices specifying the time and date of the
hearing as well as instructions for the proper method of participation shall be
mailed, transmitted by facsimile machine, or transmitted by electronic means to
each party to the appeal at least ten calendar days before the scheduled
hearing date. If participants are required to register for their hearing, the
notice shall contain instructions regarding the method of
registration.
11.2.5
Disqualification of a Hearing Officer. Challenges to the interest
of a hearing officer in an appeal scheduled to be heard by said hearing officer
shall be heard and decided by that hearing officer or, in his or her
discretion, referred to the panel.
11.2.6
Prehearing Conference.
The chief hearing officer or designee may, upon the application of any party or
on his or her own motion, convene a prehearing conference to discuss the issues
on appeal, the evidence to be presented, and any other relevant matters that
may simplify further proceedings.
11.2.7
Prehearing Discovery in Premium
Cases. In cases arising under
8-76-110(3)(e)
and 8-76-113, C.R.S., the chief hearing
officer or designee may permit the parties to engage in prehearing discovery,
insofar as practicable, in accordance with the Colorado Rules of Civil
Procedure and, in connection therewith, shorten or extend any applicable
response time.
11.2.8
Limitation on Discovery. No party to an appeal proceeding may seek
discovery without having first obtained an order of the chief hearing officer
or designee and only upon a showing of necessity for such discovery.
11.2.9
Conduct of Hearing.
Hearings shall be conducted informally with as few technical requirements as
possible. The hearing officer shall control the evidence taken during a hearing
in a manner best suited to develop, fully and fairly the relevant evidence,
safeguard the rights of all parties, and ascertain the substantive rights of
the parties based on the merits of the issue(s) to be decided. The appealing
party shall be required to present evidence that supports the party's position
on the issues raised by the appeal. Parties to the appeal may present any
relevant evidence. However, the hearing officer is charged with ensuring that
the record is fully developed to the extent practicable based on the evidence
reasonably available at the time of the hearing, whether or not a party is
represented. Therefore, the hearing officer should oversee the development of
the evidence and participate in the interrogation process to the extent
necessary to fully develop the record.
.1
Parties and witnesses shall ordinarily participate by telephone. However, based
on the individual circumstances of a case or if a party would be disadvantaged
by telephone participation, the chief hearing officer or designee shall have
the discretion to determine another method of participation and to order the
parties to participate in that manner to best achieve the purposes of this rule
11.2.
.2 Parties may be required to
register for their hearing prior to the scheduled date and time of the hearing.
Registration shall be considered part of the hearing process and failure to
register for a scheduled hearing shall constitute a failure to appear pursuant
to regulation 11.2.13.
.3 An
interested party to a hearing must submit to the hearing officer any documents,
subpoenaed documents, and any physical exhibits that can be reproduced that he
or she intends to introduce at the hearing. Such materials must be submitted in
time to ensure that the hearing officer receives them before the date of the
scheduled hearing. Such party must also provide copies of all documents and
physical exhibits sent to the hearing officer to any other interested party to
the hearing or to that interested party's representative as shown on the
hearing notice, in time to ensure the materials are received prior to the date
of the scheduled hearing. Failure to timely submit such materials to the
hearing officer, or to timely send the materials to the opposing party or such
party's representative may result in their exclusion from the record. However,
if a party has made a good faith effort to provide documents or physical
exhibits in time to be received prior to the hearing, such materials shall not
be excluded due to the failure of the hearing officer, the other interested
party, or an interested party's representative to receive the materials. In any
appropriate case where documents have been timely sent but not received in
advance, an adjournment of the hearing may be permitted by the hearing officer
pursuant to rule 11.2.11 unless waived on the record by both parties.
.4 Hearing Procedure. Prior to
taking evidence, the hearing officer shall state the issues and the order in
which evidence will be received. The hearing officer also shall inform the
parties of any written documents or other tangible materials that have been
received and explain the procedure for introducing the materials and offering
them into evidence. The sequence of receiving testimony shall be in the hearing
officer's discretion. Computer records of the division concerning continued
weeks claimed or payment for continued weeks claimed are admissible as evidence
and may be filed in the record as evidence without formal identification if
relevant to the issues raised by the appeal. The hearing officer also may
consider any other relevant division file documents without a formal request or
identification. However, parties shall be advised during the hearing of the
division records and documents to be considered. All physical materials offered
into the record shall be clearly identified and marked. Further, materials
admitted shall be expressly received for the record. The hearing officer shall
permit the parties to testify on their own behalf and present witnesses, and
opposing parties may cross-examine each other and the others' witnesses. The
hearing officer shall examine the parties and witnesses as necessary and, after
notice to the parties, may hear such additional evidence as deemed necessary.
All testimony shall be presented under oath and the hearing shall be timed. At
the conclusion of the hearing, the hearing officer shall inform the parties of
the time consumed by the hearing and the approximate cost of the preparation of
the transcript of the hearing, if any, and shall instruct the parties that a
decision will be promptly issued as to the issues brought forth at the hearing.
The hearing officer shall also instruct the parties that such decision may be
appealed and, if applicable, that the appellant must bear the cost of
preparation of a transcript. The sum paid may, be reimbursed at a later date by
the panel without interest, if such appeal results in a decision favorable to
the appellant. It shall also be stated to the parties that the cost of
preparation of the transcript may be waived pursuant to rule 11.2.15.
.5 New Issues. Parties are entitled to
advance notice of the factual issues that may be considered at a hearing. The
hearing officer shall not permit an interested party to present factual issues
at a hearing that have not been disclosed to the other interested party(ies) in
writing, as shown by the claim file. If good cause, as set forth in rule 12.1.8
, is found for a party not providing proper notice of the factual issues it
intends to present, the hearing officer 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. In determining whether there is good
cause for permitting a new factual issue, the hearing officer shall give
substantial weight to an absence of prejudice to the other interested party and
to the overall interests of an accurate and fair resolution. An interested
party, at the hearing, may waive the requirement that they be provided with
proper notice.
11.2.10
Stipulations of Fact. With the consent of the hearing officer,
parties to an appeal may stipulate to the facts in writing. Parties may also
stipulate to facts on the record at the hearing before the hearing officer. The
hearing officer may decide the case on the facts stipulated or, in his or her
discretion, set the appeal for hearing and take such additional evidence as is
deemed necessary.
11.2.11
Adjournment of Hearings. The hearing officer may grant requests
for further hearing when, in his or her own best judgment, such further hearing
will result in adducing all necessary evidence and be equitable to the
parties.
11.2.12
Postponements of Hearings. Postponements of hearings shall not be
granted without the showing of necessity therefor by the requesting
party.
11.2.13
Failure to
Appear.
.1 Appealing Party. If the
appealing party fails to register for their hearing of fails to participate in
the hearing after registering, the appeal shall be dismissed and the decision
that was the subject of the appeal shall become final. Written notice that the
appeal has been dismissed shall be provided to the interested parties named in
the caption. The appealing party may request that the appeal be reinstated and
the hearing be rescheduled pursuant to the procedures set forth in part XII of
the regulations. The request must be received by the division within twenty
calendar days after the date the dismissal notice was mailed by the division.
An untimely request that a hearing be rescheduled may be permitted by the
division for good cause shown, pursuant to the procedure set forth in part XII
of the regulations.
.2 Nonappealing
Party. If any other interested party fails to register for their hearing of
fails to participate in the hearing, and a decision is issued by a hearing
officer on the merits of the appeal, the party who failed to participate as
directed may request that a new hearing be scheduled either by filing a written
request with the panel or filing a written appeal from the hearing officer's
decision. The written statement shall include details, pursuant to part XII of
the regulations, to establish that he or she had good cause for the failure to
participate in the appeal hearing. The request for a new hearing shall be filed
with the panel in person, by mail, by facsimile machine, by panel-approved
electronic means, or at a public employment office, the central office of the
division, the office where the hearing officer is located, or by
division-approved electronic means and shall be received by the panel within
twenty calendar days after the date mailed on the hearing officer's decision.
An untimely request for a new hearing may be permitted by the panel for good
cause shown, pursuant to the procedure set forth in part XII of the
regulations. If it is determined that the party has shown good cause for the
failure to participate, the hearing officer's decision that was issued on the
merits of the appeal shall be vacated and a new hearing scheduled
forthwith.
.3
Representative
of a Party. When an interested party's attorney or other designated
representative appears for and participates in the scheduled hearing on the
party's behalf, the party shall be deemed to have appeared for the hearing, for
the purposes of this part XI of the regulations.
11.2.14
Decision of the Hearing
Officer. The hearing officer shall announce, in written form, findings
of fact, decision, and reasons therefor, as soon as practicable after a
hearing, and a copy thereof shall be provided to all parties to the
appeal.
11.2.15
Procedure for
Appeal to the Panel.
.1 An appeal from
a decision of a hearing officer shall be by written notice of appeal that shall
be in any form that signifies an intent to appeal and shall be filed with the
panel in person, by mail, by facsimile machine or by panel-approved electronic
means, or at a public employment office or the central office of the division
or the office where the hearing officer is located or by division-approved
electronic means. An appeal from a decision of a hearing officer shall be filed
within the time limits provided by
8-74-104(1),
C.R.S., and regulation 1.8. When an appeal has been received, the appeal file
and record shall be transmitted to the panel. The panel shall notify the
interested parties named in the caption of the hearing officer's decision that
an appeal has been filed and shall provide a copy of the written appeal to the
other-named parties.
.2 The appeal
shall be filed in the manner provided by
8-74-106(1),
C.R.S. The panel shall provide each interested party or the party's
representative with an audio copy of the recorded hearing testimony or, at the
panel's discretion, a written transcript. Any interested party may obtain a
transcript of the hearing testimony for purposes of the appeal by tendering
payment for the approximate cost of the transcript. If a transcript is
reasonably necessary for an interested party or the party's representative for
purposes of the appeal due to a disability of the party or the representative,
the party or representative may provide a written statement of disability on a
form prescribed by the panel, requesting that the transcript cost be waived. In
determining whether a transcript is reasonably necessary to accommodate a
disability, the panel may require the requesting party to provide written
documentation of the disability from a treating health-care professional. If a
transcript is reasonably necessary for an interested party or the party's
representative for other reasons and the party is unable to pay the cost of the
transcript due to financial hardship, the party may provide a written statement
of necessity and indigency on a form prescribed by the panel, requesting that
such cost be waived. The appealing party shall submit the payment or completed
waiver request form with the appeal. Any other interested party shall submit
the payment or completed waiver request form within ten business days of the
date the notice of appeal is issued. In determining whether payment would cause
undue financial hardship, any relevant factors may be considered, including but
not limited to the party's household income and available money and existing
expenses; the approximate cost of the transcript; and whether payment of this
cost would deprive the party or his or her family of basic necessities. If any
interested party or representative receives a transcript of the hearing
testimony, the panel shall provide a copy of the transcript to the other
interested party or the party's representative.
.3 The panel shall issue a written procedural
decision on a completed waiver request, based upon the information contained in
the statement of indigency, written documentation from a treating health-care
professional, or other relevant information contained in the record, within
fifteen calendar days after the completed prescribed request has been received
by the panel.
.4 In ruling on a
waiver request, the panel shall have the discretion to request or accept
additional reliable evidence by such means as shall be deemed appropriate for
resolution of the issue. If the panel requests additional information, the time
period for issuing a decision on the waiver request shall be tolled until the
information is received by the panel or the time limit imposed for providing
the information has expired, whichever occurs sooner.
.5 The cost of the preparation of the
transcript of a hearing that occurs as a result of a remand order by the panel
may be assigned to be borne by the division, if expressly so assigned by panel
order, but otherwise shall be borne by the appealing party as provided in these
regulations.
.6 If the payment of
the approximate cost of the transcript tendered by the requesting party exceeds
the actual cost of the transcript, the excess payment shall be refunded without
interest to the payer. If the actual cost of the transcript exceeds the payment
received, the requesting party shall be assessed a charge for such excess cost
that must be paid within fifteen days after the date notice of such charge was
provided to the party by the panel. If this charge for excess cost is not
timely paid, the appeal shall proceed with audio copies of the testimony and
the division shall retain all monies previously submitted by the requesting
party unless the time for payment is extended for good cause shown as provided
in rule 12.1.
.7 If a party
withdraws his or her appeal after the panel has received payment or payments
for the transcript, the panel may retain such payments in whole or in part
according to the panel's assessment of its own costs in administrative time and
expense in preparation of the transcript.
.8 Any act required by this regulation
11.2.15, except regulation 11.2.15.5, may be permitted outside the time periods
set forth herein for good cause shown.
.9 Briefing Schedule. A "brief" for purposes
of this rule, shall be any document apparently intended by an interested party
to be a written argument. Copies of the audio recording or the transcript of
the hearing testimony shall be provided to the interested parties named in the
caption of the hearing officer's decision with a notice that the parties may
submit a brief. Each named interested party may submit one brief within twelve
calendar days after the date the notice was provided to the party by the panel.
The panel may, in its discretion, permit the non-appealing party to file a
brief in response to the brief filed by the appealing party. Such response
brief must be filed with the panel within ten calendar days of the date of the
panel's notification, which shall be accompanied by a copy of the appealing
party's brief. Requests for extensions of time for the filing of briefs must be
in writing as defined in rule 1.3.11.2 and will be granted only on a specific
showing of inability to submit a brief within the time limits set forth herein.
When a party files an appeal of a hearing officer's decision in circumstances
in which no hearing has been held, the appealing party shall submit its written
argument, if any, with the appeal.
11.2.16
Decision of the Panel.
The panel may affirm, modify, reverse, or set aside a hearing officer's
decision on the basis of the evidence in the record previously submitted in the
case, which shall include any relevant materials in the case file at the time
of the hearing. In addition, the majority of the members of entire panel may
remand a case for the taking of further evidence where there has been a
compelling demonstration that such evidence, if credited, would establish that
a miscarriage of justice has occurred. Prior to determining whether such a
remand is appropriate, the panel shall provide written notice of the issue to
the interested parties and afford them at least seven (7) calendar days to
provide a written response. In determining the issue, the panel members shall
consider the following factors: whether the party offering the additional
evidence knew or should have known of the existence of the evidence at the time
of the hearing; whether the party requested the hearing officer to continue the
hearing to allow additional evidence and the hearing officer denied the party's
request; whether there is a substantial likelihood that the offer of proof
pertaining to the additional evidence would have compelled a substantially
different decision by the hearing officer; and whether there is a substantial
likelihood that the additional evidence would show that the evidence presented
at the hearing was false and that the false evidence had an effect on the
outcome of the hearing. The neglect or error of a party's designated
representative shall be imputed to the party and shall not constitute a basis
for a remand to consider additional evidence under this section. Decisions
shall identify those members of the panel who consider an appeal and copies
thereof shall be provided to all interested parties or their representatives of
record. The decision of the majority shall control, provided, however, that a
dissent stating reasons therefor may be filed by the minority.
.1 Precedential Decisions. Upon a unanimous
vote of the members of the entire panel, a panel decision may be designated as
precedential to be followed by the hearing officers and deputies of the
division. Precedential decisions shall meet at least one of the following
criteria:
1) The decision interprets a
statute, rule, or
2) The decision
resolves an apparent conflict of authority. Precedential decisions shall be
promptly provided to the hearing officers and deputies of the division. In
addition, precedential decisions shall be published and made available to the
public in a manner that does not reveal confidential identifying information
prohibited by
8-72-107(1),
C.R.S.
11.2.17
Disqualification of
Examiner. Challenges to the interest of an examiner shall be heard and
decided by the panel.
11.2.18
Evidence From Another State. The division may, after notice to the
parties, request an agency that administers the employment security law for
another state to take evidence in that state for use by the division. Such
agency, after notice to the parties, may follow the procedure prescribed by the
law and regulations of that state for conducting hearings.
11.2.19
Subpoenas. The division
may issue subpoenas to compel attendance of witnesses and production of records
for a hearing before a hearing officer. A subpoena shall be served by
delivering a copy of the subpoena to the person named therein no later than
forty-eight hours before the time for appearance set forth in said subpoena. A
subpoena may be served by an interested party, and proof of service shall be
made by affidavit setting forth the date, place, and manner of service.
.1 A party that submits a request for a
subpoena shall show:
.1 The name of the
witness and the address where the witness can be served the subpoena;
.2 That the testimony of the witness is
material; and
.3 That the testimony
of the witness is not repetitive.
.2 If the requesting party wishes the witness
to produce books, records, documents, or other physical evidence, the party
shall also show:
.1 The name or a detailed
description of the specific books, records, documents, or other physical
evidence the witness should bring to the hearing;
.2 That such evidence is material;
.3 That such evidence is not repetitive;
and
.4 That such evidence does not
cause an undue burden on the party to whom it is directed.
.3 If the subpoena or subpoena duces tecum is
denied, the aggrieved party may object at the hearing. The hearing officer will
consider all objections and responses and supporting evidence, if any, and will
grant or deny the request for issuance of the subpoena. If denied, the hearing
will proceed on the merits of the issue in dispute. If granted, the hearing
shall be adjourned pursuant to regulation 11.2.11.
11.2.20
Appearance of Parties.
In a proceeding before a hearing officer or the panel, an individual may appear
for himself or herself; a partnership may be represented by any partner or a
duly authorized representative; and a corporation or association may be
represented by an officer or duly authorized representative.
11.2.21
Designation of
Representative. In addition to representatives under regulation 11.2.20,
any party may designate another person as an authorized representative in an
appeal proceeding before the division or panel.
11.2.22
Preserving Records of
Decisions. Decisions of hearing officers and the panel shall be kept in
such format as may be determined by the division in the main administrative
office of the division in Denver, Colorado for a period of two years after the
last decision. Copies of such decisions may be obtained by the interested
parties upon written request and the payment of a reasonable fee
therefor.
Notes
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No prior version found.