SUMMARY 

November 21, 2019 

2019COA173

No. 19CA0679, M & A Acquisition Corp. v. ICAO — Labor and 

Industry — Colorado Employment Security Act — Benefit 

Awards 

As a matter of first impression, the division concludes that the 

ICAO Appeals Panel erroneously treats section 8-73-108(5)(e)(IX.5), 

C.R.S. 2019 as the exclusive applicable provision for disqualifying 

an employee from unemployment compensation eligibility when the 

employee’s separation from employment resulted from a positive 

drug test administered pursuant to the employer’s drug policy. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
COLORADO COURT OF APPEALS 2019COA173

Court of Appeals No. 19CA0679 

Industrial Claim Appeals Office of the State of Colorado 

DD No. 48631-2018 

M & A Acquisition Corp./West Star Aviation, Inc., 

Petitioner, 

v. 

Industrial Claim Appeals Office of the State of Colorado and Ryan D. Holm, 

Respondents. 

ORDER SET ASIDE AND CASE 

REMANDED WITH DIRECTIONS 

Division VII 

Opinion by JUDGE TOW 

J. Jones and Fox, JJ., concur 

Announced November 21, 2019 

Bechtel Santo & Severn, Michael C. Santo, Emily E. Tichenor, Grand Junction, 

Colorado, for Petitioner 

No Appearance for Respondents 
1 

¶ 1 In this unemployment compensation benefits case, M & A 

Acquisition Corp. seeks review of a final order of the Industrial 

Claim Appeals Office (Panel). The Panel affirmed a hearing officer’s 

decision awarding benefits to Ryan D. Holm. M & A discharged 

Holm because he tested positive for marijuana. 

¶ 2 M & A contends that the Panel erred by limiting its analysis to 

a single disqualifying subsection of the statute, section 8-73-

108(5)(e)(IX.5), C.R.S. 2019, and by expressly declining to consider 

other potentially applicable disqualifying subsections. We agree 

and therefore set aside the Panel’s order and remand for further 

proceedings. 

I. Background 

¶ 3 We derive the following information concerning Holm’s job 

separation from the hearing officer’s findings. 

¶ 4 Holm worked for M & A as a full-time aircraft mechanic. He 

was injured at work in February 2017. Although he returned to 

work for a few days in April and May 2017, he was eventually 

placed on a medical leave of absence on May 30, 2017. 

¶ 5 While on medical leave, Holm needed to go into M & A’s office 

every other week to make payments on a loan against his 
2 

retirement account. In November 2017, while Holm was in the 

office making a loan payment, a person in human resources notified 

him that his name had been pulled for a random drug test. M & A 

had a written policy requiring employees to submit to random drug 

tests if their names came up for such testing. Holm was aware of 

this policy. Holm tested positive for marijuana, and M & A 

thereafter discharged him based on the test result. 

¶ 6 The hearing officer found that Holm was still an M & A 

employee and therefore subject to the drug testing policy but was 

not working when he was tested. The hearing officer determined 

that because Holm had been on a leave of absence since May 30, 

2017, and had not performed work for M & A since that date, he 

was not at fault for the job separation. Consequently, the hearing 

officer awarded Holm benefits on a no-fault basis. See § 8-73-

108(1)(a) (setting forth the guiding legislative principle that 

“unemployment insurance is for the benefit of persons unemployed 

through no fault of their own”). 

¶ 7 M & A appealed the decision to the Panel, arguing that Holm 

was disqualified from receiving benefits under three statutory 

provisions: (1) “[v]iolation of a statute or of a company rule which 
3 

resulted or could have resulted in serious damage to the employer’s 

property or interests”; (2) “[o]ff-the-job use of not medically 

prescribed intoxicating beverages or controlled substances . . . to a 

degree resulting in interference with job performance”; and (3) 

“failure to meet established job performance or other defined 

standards.” § 8-73-108(5)(e)(VII), (VIII), (XX). 

¶ 8 On review, the Panel affirmed the hearing officer’s decision but 

applied a different rationale. It concluded that “when an individual 

is separated from employment due to a positive drug test 

administered pursuant to the employer’s drug policy, the provisions 

of [section] 8-73-108(5)(e)(IX.5), C.R.S. are exclusive” and 

disqualification “is not warranted under one of the more general 

disqualification provisions.” Hence, the Panel declined to consider 

whether the three other possible disqualifying subsections urged by 

M & A applied. 

¶ 9 Because marijuana was not present in Holm’s system “during 

working hours” as required by subsection (IX.5), the Panel 

concluded that he was not disqualified from receiving benefits 

under that subsection. Based on its conclusion that subsection 

(IX.5) was the only potentially applicable disqualifying subsection, 
4 

the Panel reasoned that since its requirements were not met, Holm 

was not at fault for the separation and was entitled to an award of 

benefits. 

II. Discussion 

¶ 10 M & A contends that the Panel erred by considering only 

subsection (IX.5) and by expressly declining to consider other 

possible disqualifying subsections. We agree. 

¶ 11 We may set aside a Panel decision if, among other reasons, it 

is erroneous as a matter of law. See § 8-74-107(6), C.R.S. 2019; 

Whitewater Hill, LLC v. Indus. Claim Appeals Office, 2015 COA 5, 

¶ 10. We review de novo an agency’s legal conclusions, including 

its interpretation of statutes. Whitewater Hill, ¶ 10. 

¶ 12 As pertinent here, subsection (IX.5) provides for 

disqualification from the receipt of benefits based on the 

presence in an individual’s system, during 

working hours, of not medically prescribed 

controlled substances . . . as evidenced by a 

drug or alcohol test administered pursuant to 

a statutory or regulatory requirement or a 

previously established, written drug or alcohol 

policy of the employer and conducted by a 

medical facility or laboratory licensed or 

certified to conduct such tests. 

§ 8-73-108(5)(e)(IX.5). 
5 

¶ 13 Nothing in the language of this subsection supports the 

Panel’s conclusion that it should be applied exclusively in certain 

circumstances. Furthermore, the Panel’s conclusion that 

subsection (IX.5) applies exclusively directly conflicts with the 

following language in section 8-73-108(5)(e): “[I]f a separation from 

employment occurs for any of the following reasons, the employer 

from whom such separation occurred must not be charged for 

benefits which are attributable to such employment and . . . a 

payment of such benefits must not be made from [the 

unemployment compensation] fund . . . .” (Emphasis added.) The 

statute then lists twenty-five separate subsections, each of which 

describes a separate possible circumstance or reason supporting 

benefit disqualification. See § 8-73-108(5)(e)(I)-(XXIV). Section 8-

73-108(4), which lists the statute’s various qualifying provisions, 

contains the same “any of the following reasons” language. 

¶ 14 Thus, the statute contemplates that hearing officers and the 

Panel will consider all potentially applicable qualifying and 

disqualifying provisions. See Mattison v. Indus. Comm’n, 33 Colo. 

App. 203, 206-07, 516 P.2d 1143, 1145 (1973) (noting that where 

cases “fall within two or more provisions of the Act . . . the 
6 

Commission has wide latitude in determining which section will be 

applied” and that if “the facts of a case are covered specifically by 

one section of the statute, that provision must be applied”); see also

Dailey, Goodwin & O’Leary, P.C. v. Div. of Emp’t, 40 Colo. App. 256, 

259, 572 P.2d 853, 855 (1977) (stating that “the facts in a given 

case [must] be examined to ascertain if they bring the matter within 

any statutory category”). 

¶ 15 To support its conclusion that Holm’s firing based on the 

positive drug test only triggers consideration of subsection (IX.5), 

the Panel stated as follows: “In our view, the reasoning of the court 

of appeals in Board of Water Commissioners v. Industrial Claim 

Appeals Office, 881 P.2d 476 (Colo. App. 1994) and the fact that the 

General Assembly subsequently enacted [section] 8-73-

108(5)(e)(IX.5) is controlling.” We are not persuaded that either 

Board of Water Commissioners or the enactment of subsection (IX.5) 

supports the Panel’s conclusion. 

¶ 16 First, contrary to the Panel’s assertion, Board of Water 

Commissioners was announced on August 11, 1994, more than a 

month after subsection (IX.5) became effective on July 1, 1994. See

Ch. 321, sec. 1, § 8-73-108(5)(e)(IX.5), 1994 Colo. Sess. Laws 1998. 
7 

Thus, to the extent the Panel considered subsection (IX.5) to be a 

legislative response to Board of Water Commissioners, it was in 

error. 

¶ 17 Furthermore, nothing in Board of Water Commissioners itself 

supports the Panel’s conclusion that subsection (IX.5) should be 

applied exclusively. In that case, the claimant was fired because he 

tested positive for cocaine in violation of the employer’s substance 

abuse policy. Bd. of Water Comm’rs, 881 P.2d at 477. However, the 

hearing officer awarded the claimant benefits, concluding that 

although he had been fired for violating a company rule, the 

employer had not established the requisite “serious damage” or 

“endangerment” to support disqualification under section 8-73-

108(5)(e)(VII). Bd. of Water Comm’rs, 881 P.2d at 477-78. The 

hearing officer also determined that the claimant was not 

responsible or “at fault” for the separation. Id. at 478. 

¶ 18 The Panel affirmed. Id. It rejected the employer’s argument 

that the claimant should be disqualified under two subsections 

specifically relating to controlled substances, section 8-73-

108(5)(e)(VIII) and (IX). Bd. of Water Comm’rs, 881 P.2d at 478. 
8 

¶ 19 On review, a division of this court reversed. Based on the 

evidentiary record, the division concluded that the claimant was (1) 

at fault for the job separation and (2) disqualified from receiving 

benefits under a statutory subsection the Panel and the hearing 

officer had not even considered — section 8-73-108(5)(e)(XX) (failure 

to meet established job performance or other defined standards). 

Bd. of Water Comm’rs, 881 P.2d at 478. 

¶ 20 In our view, Board of Water Commissioners does not support 

the Panel’s conclusion that it should only consider a single 

disqualifying subsection in this type of job separation scenario. To 

the contrary, it supports the apparent legislative intent expressed in 

section 8-73-108 that hearing officers and the Panel should 

consider all potentially applicable subsections of the statute. 

¶ 21 Moreover, the employer’s failure to satisfy the specific 

requirements for disqualification under subsection (IX.5) does not, 

in our view, justify ignoring other more general and potentially 

applicable subsections. We note that the Board of Water 

Commissioners division chose to consider and apply a more general 

subsection — section 8-73-108(5)(e)(XX) — even though the 

evidence in that case did not support applying other disqualifying 
9 

subsections, including two that more specifically addressed 

controlled substances. Indeed, construing subsection (IX.5) to 

apply exclusively would effectively nullify or render meaningless 

section 8-73-108(5)(e)’s language that disqualification is required if 

“any of the following reasons” contained in the twenty-five 

subsections exists. See Yotes, Inc. v. Indus. Claim Appeals Office, 

2013 COA 124, ¶ 14 (courts must give consistent, harmonious, and 

sensible effect to all parts of a statute and avoid an interpretation or 

construction that renders any language meaningless). 

¶ 22 It appears the Panel may have invoked the canon of statutory 

interpretation dictating that the specific overrides the general. See

§ 2-4-205, C.R.S. 2019. However, where statutory provisions 

appear to conflict, they “shall be construed, if possible, so that 

effect is given to both.” Id. In other words, the specific-overridesgeneral canon “is only applicable when ‘a conflict between two 

statutory provisions is irreconcilable.’” Young v. Brighton Sch. Dist. 

27J, 2014 CO 32, ¶ 16 (emphasis in Young) (quoting Martin v. 

People, 27 P.3d 846, 860 (Colo. 2001)). 

¶ 23 Any conflict among the provisions at issue in this case is not 

irreconcilable. Subsection (IX.5) disqualifies an individual for the 
10 

sole reason that he or she had a positive drug or alcohol test while 

working, essentially dispensing with the need for an employer to 

establish any impairment of the employee’s abilities or adverse 

effect on the employer’s business. However, subsection (VII) would 

apply where an employee violates an employer’s rule prohibiting 

drug use, whether on or off the job, but an employer would be 

required to demonstrate that the employee’s drug use had, or could 

have had, adverse impacts on the company. Similarly, subsection 

(VIII) could be applied to off-the-job drug use but requires proof that 

the drug use interfered with the employee’s job performance. And 

subsection (XX), when applied in a drug use or testing scenario, 

requires the employer to establish that an employee’s drug use or 

failed drug test caused him or her to fail to meet an established job 

performance or other defined standard. Because there is no 

irreconcilable conflict, all provisions of the statute are amenable to 

harmonious construction, and thus must be given effect. 

¶ 24 For these reasons, we agree with M & A’s contention that the 

Panel erred by limiting its analysis in this case solely to subsection 

(IX.5). 
11 

¶ 25 We note the Panel ultimately concluded that Holm was not at 

fault for the discharge, and we acknowledge that such a conclusion 

could, by itself, support an award of benefits. See Cole v. Indus. 

Claim Appeals Office, 964 P.2d 617, 618 (Colo. App. 1998) (“[E]ven if 

the findings of the hearing officer may support the application of 

one of the disqualifying sections of the statute, a claimant may still 

be entitled to benefits if the totality of the circumstances establishes 

that the claimant’s separation occurred through no fault of her 

own.”). But it appears that the Panel’s fault analysis was based 

solely on its erroneous conclusion that subsection (IX.5) applies 

exclusively. 

¶ 26 We conclude that the proper remedy is to set aside the Panel’s 

order and remand for it to consider whether the findings and the 

evidence should support disqualifying Holm under any of the other 

statutory subsections asserted by M & A. In doing so, we express 

no opinion as to the merits of M & A’s contentions that Holm is 

disqualified under any of the three provisions, particularly in light 

of the hearing officer’s factual finding that Holm’s use of marijuana 

did not interfere with his performance at work. We also note that, 

on remand, the Panel is to review the matter on the record before it, 
12 

and consider only those arguments previously asserted by M & A. 

The Panel should also determine whether Holm was at fault for the 

separation using the generally recognized legal standards for that 

inquiry. See Mesa Cty. Pub. Library Dist. v. Indus. Claim Appeals 

Office, 2017 CO 78, ¶ 18; Cole, 964 P.2d at 618-19. 

III. Conclusion 

¶ 27 The Panel’s order is set aside, and the case is remanded for 

further proceedings consistent with the views expressed in this 

opinion. 

JUDGE J. JONES and JUDGE FOX concur.