Myers v. ICAO

24CA1978 Myers v ICAO 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1978
Industrial Claim Appeals Office of the State of Colorado
DD No. 27989-2024

Andrew Myers,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado,

Respondent.

ORDER AFFIRMED

Division II
Opinion by JUDGE LUM
Fox and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Andrew Myers, Pro Se

No Appearance for Respondent
¶1 In this unemployment benefits case, Andrew Myers seeks

review of a final order of the Industrial Claim Appeals Office (Panel)

denying his request for a new hearing regarding his eligibility for

benefits. We affirm the Panel’s order.

I. Background

¶2 Myers worked for Walmart, Inc. as a General Manager for ten

years before separating from his employment in June 2024. Upon

that separation, he filed a claim for benefits with the Division of

Unemployment Insurance (Division), and a Division deputy granted

his claim.

¶3 Walmart appealed the deputy’s decision, and a hearing officer

for the Division scheduled an evidentiary hearing for October 23,

2024. Myers failed to appear at the hearing, and the hearing officer

entered an order reversing the deputy’s decision.

¶4 Myers then filed a request for a new hearing, explaining that

the hearing notice was originally delivered to his neighbor. The

neighbor gave Myers the notice a few days before the October

hearing. But by that time, Myers argued, his wife’s work schedule

and his unspecified commitments to his children prevented him

from attending the hearing. The Panel determined that Myers had

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failed to demonstrate good cause for missing the October hearing

and denied his request for a new hearing.

II. Standard of Review

¶5 We may not disturb factual findings supported by “substantial

evidence” or “reasonable inferences” drawn therefrom and may only

set aside the Panel’s decision if (1) the Panel acted without or in

excess of its powers; (2) the decision was procured by fraud; (3) the

factual findings do not support its decision; or (4) the decision is

erroneous as a matter of law. § 8-74-107(6), C.R.S. 2024; Yotes,

Inc. v. Indus. Claim Appeals Off., 2013 COA 124, ¶ 10. Substantial

evidence is “probative, credible, and competent, of a character

which would warrant a reasonable belief in the existence of facts

supporting a particular finding, without regard to the existence of

contradictory testimony or contrary inferences.” Rathburn v. Indus.

Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).

III. Analysis

¶6 Because Myers represents himself, we construe his arguments

liberally, giving effect to their substance rather than form. See

People v. Bergerud, 223 P.3d 686, 696-97 (Colo. 2010). With this in

mind, we discern that Myers argues the Panel erred by concluding

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that he failed to demonstrate good cause for his failure to appear in

October. Myers reiterates that he missed the hearing because he

received the notice only a few days in advance, at which point he

had a conflicting obligation. Additionally, Myers argues that he did

not realize he could request that the hearing be postponed.

¶7 The Panel may only grant a new hearing when the requesting

party demonstrates good cause for failing to appear at the original

hearing. Dep’t of Lab. & Emp. Reg. 11.2.13.2, 7 Code Colo. Regs.

1101-2. In determining whether a claimant has shown good cause,

the Panel has discretion to weigh various factors, including, but not

limited to, (1) whether the party acted in the manner that a

reasonably prudent individual would have acted under the same or

similar circumstances; (2) whether there was administrative error

by the division; (3) whether the party exercised control over the

untimely action; (4) the length of time the action was untimely; (5)

whether any other interested party has been prejudiced by the

failure to act or untimely action; and (6) whether denying good

cause would lead to a result that is inconsistent with the law. Dep’t

of Lab. & Emp. Reg. 12.1.8, 7 Code Colo. Regs. 1101-2. The Panel

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need not make findings as to every foregoing factor. Dep’t of Lab. &

Emp. Reg. 12.1.8.8, 7 Code Colo. Regs. 1101-2.

¶8 As relevant here, the Panel concluded that Myers exercised

control over the circumstances leading him to miss the hearing, and

that he failed to behave as a reasonably prudent person would

under those circumstances. Substantial evidence supports the

Panel’s factual findings and reasonable inferences.

¶9 First, it is undisputed that Myers received the notice multiple

days before the scheduled hearing. Second, the notice expressly

invited Myers — in bold text — to call the Division before the

hearing date with any questions, and it advised him that simply

failing to appear, without further communication, could forfeit his

right to defend the appeal:

If you have questions before or after the hearing,
please call 303-318-9299 or 1-800-405-2338 . . . .
You must CHECK IN for your hearing AS SOON AS
POSSIBLE, and NO LATER than 2 PM the day before
your hearing. . . . Failure to check in will impact
your appeal! . . . If you fail to check in and you are the
non-appealing party, the hearing may proceed without
you and the information you submitted may not be
considered.

From this express warning, and the fact that Myers received the

notice in time to call the Division and explain his dilemma, the

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Panel found that a reasonable person in Myers’s position would

have “taken action regarding his unemployment case,” such as

“call[ing] the Hearings/Appeals office.”

¶ 10 Myers argues that reading the hearing notice and

accompanying materials triggered a panic attack, inhibiting his

ability to process the information therein. However, because Myers

failed to raise this argument in the administrative proceedings

below, we do not consider it on appeal. See Velo v. Emp. Sols. Pers.,

988 P.2d 1139, 1143 (Colo. App. 1998) (declining to consider

arguments raised for the first time on appeal). We discern no other

evidence in the record indicating that circumstances beyond

Myers’s control precluded him from calling the Division, and we will

not disturb the Panel’s findings and reasonable inferences. See

Yotes, ¶ 10.

¶ 11 As part of its findings, the Panel noted that Myers could have

asked the Division to postpone the hearing. See Dep’t of Lab. &

Emp. Reg. 11.2.12, 7 Code Colo. Regs. 1101-2. On appeal, Myers

argues he did not know he could request a postponement. But this

argument does not change our conclusion. Whether Myers knew he

could request a postponement of the hearing, he still failed to act

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reasonably when he received the notice, determined he could not

attend the hearing, and failed to contact the Division before the

hearing. In short, as the Panel found, “a reasonably prudent

claimant who had a scheduling conflict” would have taken action

“to preserve his rights.”

¶ 12 Finally, though Myers raises multiple arguments regarding the

merits of his underlying claim for unemployment insurance

benefits, we do not address them. At this stage in the proceedings,

the merits of his claim are not properly before us because the Panel

never reached those issues. See § 8-74-107 (granting appellate

court jurisdiction to review only the Panel’s decision); People in

Interest of M.B., 2020 COA 13, ¶ 14 (an appellate court generally

reviews only matters ruled on in the order being appealed).

IV. Disposition

¶ 13 We affirm the Panel’s order.

JUDGE FOX and JUDGE GOMEZ concur.

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