Piro v. ICAO

21CA0893 Piro v ICAO 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0893

Industrial Claim Appeals Office of the State of Colorado

DD No. 19707-2020

Vincent Piro,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Division of

Unemployment Insurance, Quality Control/BAM,

Respondents.

ORDER AFFIRMED

Division IV

Opinion by JUDGE TOW

J. Jones and Freyre, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Vincent Piro, Pro Se

No Appearance for Respondents

1

¶ 1

In this unemployment benefits case, claimant, Vincent Piro,

seeks review of a final order of the Industrial Claim Appeals Office

(Panel). The Panel affirmed the hearing officer’s decision that Piro is

not eligible for Pandemic Unemployment Assistance (PUA) because

he had sufficient qualifying wages to file a state unemployment

insurance claim. We affirm the Panel’s order.

I. Background

¶ 2

After Piro applied for PUA benefits, a deputy for the Division of

Unemployment Insurance (Division) issued a decision disallowing

Piro’s PUA benefit claim from March 29, 2020, to March 27, 2021.

The deputy determined that Piro did not qualify for PUA benefits

because he had sufficient qualifying wages from the state of Florida

to file a state unemployment insurance claim.

¶ 3

Piro appealed the deputy’s decision. After a hearing, the

hearing officer affirmed the deputy’s decision. The hearing officer

concluded that Piro was eligible for regular state unemployment

benefits because he had more than $2,500 in qualifying wages in

his base period. In support of that conclusion, the hearing officer

made the following findings of fact:

2

 The effective date of Piro’s PUA benefit claim was March

20, 2020.

 Piro’s weekly benefit amount was $618.

 Based on the filing date, Piro’s base period was the fourth

quarter of 2018 to the third quarter of 2019.

 In the first and second quarters of 2019, Piro had

$47,163.50 in W-2 wages paid by Davidson Hotel

Company, LLC (Davidson), which were reported to the

state of Florida.

 Piro’s remaining earnings in 2018 and 2019 were paid to

him as an independent contractor.

¶ 4

Piro appealed the hearing officer’s decision with the Panel. On

review, the Panel affirmed the hearing officer’s decision.

II. Preliminary Matters

¶ 5

Before we address the merits of his contentions, we note that

Piro attached several documents to the notice of appeal and another

document to the opening brief. However, our review is limited to

the evidence the parties presented to the hearing officer at the

administrative hearing. See Goodwill Indus. of Colo. Springs v.

Indus. Claim Appeals Off., 862 P.2d 1042, 1047 (Colo. App. 1993).

3

Because Piro did not introduce those documents at the

administrative hearing, we may not consider them on appeal. See

id. Similarly, we may not consider the new factual assertions in

Piro’s opening brief because he did not make them at the hearing.

III. Analysis

¶ 6

On appeal, Piro appears to challenge only the advice he

received when he contacted the Division and the state of Florida in

applying for PUA benefits and, liberally construing his pleading, see

Minshall v. Johnston, 2018 COA 44, ¶ 10, whether Piro had

sufficient qualifying wages to file a state unemployment insurance

claim. But the latter was the only issue before the hearing officer

and the Panel.

¶ 7

Because our review is limited to the issue that was before the

hearing officer and the Panel, we do not address Piro’s other

contentions. Instead, we limit our consideration to whether there

was substantial evidence in the record to support the hearing

officer’s findings about Piro’s qualifying wages for a state

unemployment insurance claim and the Panel’s legal conclusions

on that issue. After reviewing the record evidence and applying our

4

applicable standard of review, we conclude that we cannot disturb

the hearing officer’s findings or set aside the Panel’s order.

¶ 8

We review de novo the Panel’s legal conclusions. See Cath.

Health Initiatives Colo. v. Indus. Claim Appeals Off., 2021 COA 48,

¶ 14. As relevant here, we may only set aside the Panel’s decision if

it is not supported by the record or if it is erroneous as a matter of

law. See § 8-74-107(6)(c)-(d), C.R.S. 2020.

¶ 9

Moreover, we may not disturb a hearing officer’s factual

findings if they are “supported by substantial evidence or

reasonable inferences drawn from that evidence.” Yotes, Inc. v.

Indus. Claim Appeals Off., 2013 COA 124, ¶ 10; see also

§ 8-74-107(4) (a hearing officer’s factual findings are conclusive

when they are supported by substantial evidence).

¶ 10

A “covered individual” under the Coronavirus Aid, Relief, and

Economic Security Act is one who “otherwise would not qualify for

regular unemployment or extended benefits under State or Federal

law or pandemic emergency unemployment compensation.”

15 U.S.C. § 9021(a)(3)(A)(ii)(II). An unemployed individual is eligible

to receive Colorado unemployment compensation benefits if he has

been paid wages during his base period that are “not less than forty

5

times such individual’s weekly benefit amount or [$2,500],

whichever is greater.” § 8-73-107(1)(e), C.R.S. 2020.

¶ 11

There is substantial record evidence supporting the hearing

officer’s findings that Piro had sufficient qualifying wages to apply

for a state unemployment insurance claim. Indeed, a representative

for the Division explicitly testified to each of the above-referenced

factual findings made by the hearing officer.

¶ 12

Further, Piro confirmed that he had (1) filed for PUA benefits

on March 29, 2020; and (2) received “47,000 and change” in W-2

income from Davidson in 2019.

¶ 13

Based on these facts, Piro was eligible for Colorado

unemployment insurance benefits under section 8-73-107(1)(e)

because he had sufficient qualifying wages during his base period.

That is, Piro was paid wages during his base period ($47,163.50)

that were not less than his weekly benefit amount of $618

multiplied by forty ($24,720). Because he was eligible to apply for

regular unemployment benefits, Piro was not eligible for PUA

benefits. See 15 U.S.C. § 9021(a)(3)(A)(ii)(II).

¶ 14

Although Piro testified that he changed his status to an

independent contractor with Davidson in February or March 2019,

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and the majority of the income he received from them was 1099

income, the fact that he also received 1099 income that exceeded

the amount of his W-2 income does not change the result. Nor does

the fact that Piro paid Colorado state income tax on his earnings

from Davidson. The statute only requires that Piro have a certain

amount of qualifying wages during his base period to be eligible for

state benefits.

¶ 15

Because the hearing officer’s findings are supported by

substantial evidence in the record, we may not disturb them on

review. See Yotes, ¶ 10. Under these circumstances, we cannot

conclude that the Panel’s order was legally erroneous or

unsupported by the factual findings. Thus, we may not set aside

the Panel’s order on review. See § 8-74-107(6)(c)-(d).

IV. Conclusion

¶ 16

The Panel’s order is affirmed.

JUDGE J. JONES and JUDGE FREYRE concur.