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

7 CCR 1101-2-11.2
37 CR 13, July 10, 2014, effective 8/1/2014 39 CR 08, April 25, 2016, effective 5/15/2016 39 CR 22, November 25, 2016, effective 12/15/2016 40 CR 11, June 10, 2017, effective 7/1/2017 40 CR 23, December 10, 2017, effective 12/30/2017 41 CR 08, April 25, 2018, effective 6/3/2018 41 CR 16, August 25, 2018, effective 9/14/2018 42 CR 06, March 25, 2019, effective 4/15/2019 43 CR 08, April 25, 2020, effective 3/20/2020 43 CR 06, March 25, 2020, effective 4/14/2020 43 CR 19, October 10, 2020, effective 10/30/2020

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