CO Code § 8-74-107 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 74 - Claims for Benefits|§ 8-74-107. Court Review

  No action, proceeding, or suit to set aside an industrial claim appeals panel's decision or to enjoin the enforcement thereof shall be brought unless the petitioning party has first complied with the review provisions of sections 8-74-104 and 8-74-106.    Actions, proceedings, or suits to set aside, vacate, or amend any final decision of the industrial claim appeals panel or to enjoin the enforcement thereof may be commenced in the court of appeals by any interested party, including the division. Such actions, proceedings, or suits shall be commenced by filing a notice of appeal in the court of appeals within twenty-one days of the mailing of the industrial claim appeals panel's decision, together with a certificate of service showing service of a copy of said notice of appeal on the division, the industrial claim appeals office, and all other parties who appeared in the administrative proceedings. The industrial claim appeals office, within twenty-one days after the service of the notice, shall make return to said court of all documents and papers on file in the matter, of all testimony taken therein, and of certified copies of all findings, orders, and awards, which return shall be deemed its answer to said petition. Such return of the industrial claim appeals office shall constitute the judgment roll in any such action, proceeding, or suit, and it shall not be necessary to settle a bill of exceptions in order to make such return part of the record of such court in such action, proceeding, or suit.    The industrial claim appeals panel may certify to the court of appeals questions of law involved in any of its decisions.    In judicial proceedings under this article, administrative findings as to the facts, if supported by substantial evidence and in the absence of fraud, shall be conclusive.    Actions, proceedings, and suits to review any final decision of the industrial claim appeals panel or questions certified to the court of appeals by such panel shall be heard in an expedited manner and shall be given precedence over all other civil cases, except cases arising under the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title.    The industrial claim appeals panel's decision may be set aside only upon the following grounds:   That the industrial claim appeals panel acted without or in excess of its powers;    That the decision was procured by fraud;    That the findings of fact do not support the decision;    That the decision is erroneous as a matter of law.        History. Source: L. 76: Entire article R&RE, p. 357, § 1, effective October 1. L. 84: (2) amended, p. 318, § 8, effective July 1. L. 86: (1) to (5), IP(6), and (6)(a) amended, p. 492, § 96, effective July 1. L. 90: (5) amended, p. 557, § 11, effective July 1. L. 92: (2) amended, p. 1812, § 3, effective March 19. L. 2013: (2) amended,(HB 13-1126), ch. 58, p. 191, § 1, effective July 1.    Editor's note:   This section is similar to former §§ 8-74-108 and 8-74-109 as they existed prior to 1976.   ANNOTATION   Annotator's notes. (1) Since § 8-74-107 is similar to provisions in former § 8-74-109 as it existed prior to the 1976 repeal and reenactment of this article, relevant cases construing that provisions have been included with the annotations to this section.   (2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12, which abolished said commission and transferred its powers, duties, and functions under this section to the industrial claim appeals panel.   Appellate review not inherent right. Appellate review of an industrial commission order is not an inherent right. Appellate jurisdiction is derived from the statutory and constitutional provisions by which the right of appeal is created and can be acquired and exercised only in the manner prescribed therein. Colo. Div. of Emp. & Training v. Indus. Comm'n, 665 P.2d 631 (Colo. App. 1983).   In construing the employment security act, the court should apply a liberal construction favoring claimants. Adams v. Indus. Comm'n, 31 Colo. App. 340, 501 P.2d 1334 (1972); Allen v. Indus. Comm'n, 36 Colo. App. 330, 540 P.2d 358 (1975).   But one seeking to exercise a statutory right of review or appeal must follow and comply with the procedure prescribed. Washburn v. Indus. Comm'n, 153 Colo. 500 , 386 P.2d 975 (1963).   Statute contains no provision that allows a court to engraft the principles or provisions of C.R.C.P. 60(b), either directly or indirectly, into the court's review proceedings. Huddy v. Indus. Claim Appeals Office, 894 P.2d 60 (Colo. App. 1995).   Proper parties must be aggrieved by commission's decision. Absent allegation or evidence that department of labor and employment was aggrieved by decision of industrial commission, division of employment and department of labor and employment were not proper parties to bring the appeal from decision of industrial commission denying an award of unemployment compensation. Div. of Emp. ex rel. Scachez v. Colo. Indus. Comm'n, 31 Colo. App. 259, 500 P.2d 1192 (1972).   Commission's factual determinations conclusive where supported by substantial evidence. The commission's factual determinations concerning the reasons for an employer's failure timely to file an appeal are conclusive if supported by substantial evidence. Mohawk Data Sciences Corp. v. Indus. Comm'n, 671 P.2d 1335 (Colo. App. 1983).   Judicial review by the court of appeals is limited to a review of the commission's findings and decision. McGinn v. Indus. Comm'n, 31 Colo. 6 , 496 P.2d 1080 (1972).   And if the evidence would support the findings made by the industrial commission, the court of appeals must affirm. Bryant v. Hayden Coal Co., 111 Colo. 93 , 137 P.2d 417 (1943); Indus. Comm'n v. Brady, 128 Colo. 490 , 263 P.2d 578 (1953); Indus. Comm'n v. Wilbanks, 130 Colo. 36 , 274 P.2d 99 (1954); Burak v. Am. Smelting & Ref. Co., 134 Colo. 255 , 302 P.2d 182 (1956); Morrison Rd. Bar. Inc. v. Indus. Comm'n, 138 Colo. 16 , 328 P.2d 1076 (1958); Sayers v. Am. Janitorial Serv., Inc., 162 Colo. 292 , 425 P.2d 693 (1967); Ruby v. Yellow Cab, Inc., 163 Colo. 297 , 430 P.2d 463 (1967); Stensvad v. Indus. Comm'n, 167 Colo. 140 , 445 P.2d 898 (1968); Gatewood v. Russell, 29 Colo. App. 11, 478 P.2d 679 (1970); Tague v. Coors Porcelain Co., 30 Colo. App. 158, 490 P.2d 96 (1971); Radis v. Indus. Comm'n, 31 Colo. App. 355, 502 P.2d 977 (1972).   Where the resolution of a factual issue was within the province of the commission and where there is substantial evidence to support the finding, an appellate court will not disturb it on review. Wade v. Hurley, 33 Colo. App. 30, 515 P.2d 491 (1973).   If there is substantial evidence in the record to support the factual determinations of the commission, a court should not substitute its judgment for that of the commission. Denver Symphony Ass'n v. Indus. Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974).   On judicial review of unemployment proceedings, the findings of the commission as to the facts, if supported by the evidence, shall be conclusive. Allen v. Indus. Comm'n, 36 Colo. App. 330, 540 P.2d 358 (1975).   Resolution of conflicts in the evidence is a matter properly left to the commission. Where there is evidence supporting the commission's conclusion on an issue, the commission's decision may not be disturbed on appeal. In re Krantz v. Kelran Constructors, Inc., 669 P.2d 1049 (Colo. App. 1983).   A decision of the panel may not be set aside where there are findings of fact supported by substantial evidence. Colo. Div. of Emp. & Train. v. Hewlett, 777 P.2d 704 (Colo. 1989).   And will not be set aside where based upon conflicting evidence. Findings of fact by the industrial commission should not be set aside by reviewing court where such findings are the result of a resolution on conflicting evidence. Bryant v. Hayden Coal Co., 111 Colo. 93 , 137 P.2d 417 (1943); McGinn v. Indus. Comm'n, 31 Colo. 6 , 496 P.2d 1080 (1972).   Where evidence is conflicting and susceptible to conflicting inferences, the commission's decision will not be disturbed. Olivas v. Indus. Comm'n, 33 Colo. App. 273, 518 P.2d 304 (1974).   But court not bound by commission's findings where no conflict in evidence. Where there is not material conflict in the evidence before the industrial commission acting as the unemployment compensation commission, the courts may reach their own conclusions and are not bound by the findings of fact of the commission. Indus. Comm'n v. Emerson W. Co., 149 Colo. 529 , 369 P.2d 791 (1962); Denver Post Corp. v. Indus. Comm'n, 677 P.2d 436 (Colo. App. 1984).   The commission's order may be set aside if there is not substantial evidence to support it. Stern v. Indus. Comm'n, 667 P.2d 244 (Colo. App. 1983).   Commission decisions must be set aside if erroneous. Ward v. Indus. Comm'n, 44 Colo. App. 301, 612 P.2d 1164 (1980).   Denial of benefits by referee was ambiguous and reversible error when it did not clearly set out the effect of the disqualification on claimant's future benefits and failed to advise claimant of the amount of benefits the claimant was eligible to receive. Davis v. Indus. Claim Appeals Office, 982 P.2d 330 (Colo. App. 1999).   Finding that claimant was unemployed through no fault of his own supported by substantial evidence. See Sante Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983).   A determination as to whether a claimant is responsible or “at fault” for separation from employment is a legal conclusion based on established findings of evidentiary fact, rather than a question of evidentiary fact. Accordingly, ruling based on lack of fault must be set aside if established findings of evidentiary fact do not support conclusion that claimant was at fault. Bd. of Water Comm'rs v. Indus. Claim Appeals Office, 881 P.2d 476 (Colo. App. 1994).   Substantial evidence is evidence which is probative, credible, and competent and which would warrant a reasonable belief in the existence of facts supporting finding. Kalkbrenner v. Indus. Claim Appeals Office, 801 P.2d 545 (Colo. App. 1990).   Perfection of appeal includes correct joinder of indispensable parties within the original 20-day period. Sakal v. Indus. Comm'n, 620 P.2d 65 (Colo. App. 1980); E.E.O.C. v. Indus. Comm'n, 680 P.2d 855 (Colo. App. 1984).   Failure to join a former employer who is considered an indispensable party will deprive the court of jurisdiction. Johnson v. Indus. Comm'n, 652 P.2d 1109 (Colo. App. 1982).   But employer who is not indispensable party need not be joined. An employer who has no direct involvement in the issue on appeal is not an indispensable or necessary party, and need not be joined. Asche v. Indus. Comm'n, 654 P.2d 813 (Colo. 1982).   Employer's status as indispensable party determined on facts. An employer's status as an indispensable party in unemployment compensation appeals is not automatic but must be determined on the facts of each case. Asche v. Indus. Comm'n, 654 P.2d 813 (Colo. 1982).   Former employer deemed indispensable party. In an appeal of an unemployment compensation claim, a former employer has an interest which could be adversely affected by the outcome and is, therefore, an indispensable party. Sakal v. Indus. Comm'n, 620 P.2d 65 (Colo. App. 1980).   Filing petition in court of appeals commences appellate process. Filing a petition for review directly in the court of appeals within the statutory 20-day period sufficiently commenced the appellate process for purposes of this section, even though petitioner did not effect service of process on the commission until after the expiration of that period. Bd. of County Comm'rs v. Indus. Comm'n, 664 P.2d 256 (Colo. App. 1983) (decided prior to 1984 amendment to subsection (2)).   In an unemployment compensation case, an appeal is perfected by filing a petition for review of a final decision of the industrial commission with the court of appeals within 20 days after notification of the final decision. In re Lowery v. Indus. Comm'n, 666 P.2d 562 (Colo. 1983) (decided prior to 1984 amendment to subsection (2)).   Twenty-day period for filing notice of appeal of final orders of commission commences to run when the commission mails its final order. Lutheran Hosp. & Homes Soc. v. Indus. Comm'n, 710 P.2d 496 (Colo. App. 1985).   Notice sufficient where notice to commission was timely mailed to an address other than that specified in the commission's final order and the commission was clearly set up to accept service of some matters at that address. Haynes v. Interior Invs., 725 P.2d 100 (Colo. App. 1986) (decided prior to 1986 abolishment of industrial commission).   Where the notice of final order failed to state the requirements of this section, as changed by the 1984 amendment, the order is misleading and lack of service on the commission will not be fatal to the petition for review. Scofield v. Indus. Comm'n, 697 P.2d 815 (Colo. App. 1985).   A final order is one which completely determines the rights of the parties without further action by the tribunal. A finding by the industrial claim appeals office that claimant showed good cause for her late appeal allows further action on the merits of claimant's appeal, and is therefore not a final decision subject to appeal. Agren, Blando & Assocs., Inc. v. Oleston, 746 P.2d 68 (Colo. App. 1987).   Petition for review in court of appeals does not need to state grounds. Following the 1976 revision of the Employment Security Act, there is no longer a requirement of a specification of the grounds for appeal in a separate petition for review in the court of appeals. Stern v. Indus. Comm'n, 653 P.2d 742 (Colo. 1982).   Inadequacy of findings. Where the only finding made by the industrial commission upon reversal is that claimant became separated from his employment under conditions contemplated in § 8-73-108 (6)(i) , the finding of the commission is inadequate. Subsection (6)(i) covers a number of causative factors and from such a finding the court of appeals is unable to determine the evidentiary and ultimate facts upon which the commission based its conclusion. Wilson v. Indus. Comm'n, 30 Colo. App. 154, 490 P.2d 91 (1971).   Where there is no substantial supportive evidence of the facts found by the commission, the commission's determination must be set aside. Allen v. Indus. Comm'n, 36 Colo. App. 330, 540 P.2d 358 (1975).   But where there are no material factual errors in the findings of the commission, the commission's order will not be set aside. Gandy v. Indus. Comm'n, 680 P.2d 1281 (Colo. App. 1983).   Hearing officer has jurisdiction to remand a matter for further proceedings when it appears the claimant has become separated from employment after the filing of the initial claim, but before the hearing date. Debalco v. Indus. Claim Appeals Office, 32 P.3d 621 (Colo. App. 2001).   Test for fraud is the same as that for setting aside a judgment. Cisneros v. Cisneros, 163 Colo. 245 , 430 P.2d 86 (1967); Cordova v. Indus. Comm'n, 706 P.2d 810 (Colo. App. 1985).   Statute as basis for jurisdiction. See In re Interrogatories by Indus. Comm'n, 30 Colo. App. 599, 496 P.2d 1064 (1972); Schenk v. Indus. Comm'n, 40 Colo. App. 350, 579 P.2d 1171 (1978).   Applied in Pierce v. Indus. Comm'n, 195 Colo. 10 , 576 P.2d 1012 (1978); Mtn. States Tel. & Tel. Co. v. Indus. Comm'n, 637 P.2d 401 (Colo. App. 1981); Marlin Oil Co. v. Indus. Comm'n, 641 P.2d 312 (Colo. App. 1982); Nielson v. AMI Indus., Inc., 759 P.2d 834 (Colo. App. 1988); Cole v. Indus. Claim Appeals Office, 964 P.2d 617 (Colo. App. 1998).