Bellemare v. ICAO

21CA0973 Bellemare v ICAO 12-09-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0973

Industrial Claim Appeals Office of the State of Colorado

DD No. 25655-2021

Kristen Marie Bellemare,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Keystone

Achievements,

Respondents.

APPEAL DISMISSED

Division I

Opinion by JUDGE KUHN

Dailey and Dunn, JJ., concur

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

Announced December 9, 2021

Kristen Marie Bellemare, Pro Se

No Appearance for Respondents

1

¶ 1

In this unemployment benefits case, claimant, Kristen Marie

Bellemare, seeks review of an order of the Industrial Claim Appeals

Office (Panel). The Panel affirmed the hearing officer’s decision

disqualifying Bellemare from receiving benefits based on her job

separation from Keystone Achievements. However, the Panel also

remanded Bellemare’s claim for other considerations. Because the

Panel’s order is not a final, appealable order, we dismiss the appeal.

I. Background

¶ 2

Bellemare applied for unemployment benefits after she

resigned from her employment with Keystone to move to Virginia to

be closer to family because she was pregnant. A deputy for the

Division of Unemployment Insurance (Division) issued a decision

determining that Bellemare did not qualify for state unemployment

benefits because she had separated from her employment with

Keystone for reasons that resulted in a disqualification under

section 8-73-108(5)(e)(IV), C.R.S. 2021 — that is, she had quit the

employment to move to another area.

¶ 3

Bellemare appealed the deputy’s decision. She admitted that

she left Keystone to move to Virginia. But Bellemare stated that the

start date for the job she had set up in Virginia had been delayed by

2

two weeks due to the COVID-19 pandemic and, once she started

working, it was only part time, instead of the full-time job she had

been promised.

¶ 4

After a hearing, the hearing officer affirmed the deputy’s

decision, concluding that Bellemare did not qualify for state

unemployment benefits under section 8-73-108(5)(e)(IV) because

Bellemare left her employment with Keystone to move as a matter of

personal preference. In support of that conclusion, the hearing

officer found that Bellemare resigned because she and her fiancé

wanted to relocate to Virginia to be closer to their families who

resided in Boston.

¶ 5

Bellemare appealed the hearing officer’s decision to the Panel.

She argued that, if she had been told that she did not qualify for

state unemployment benefits when she first applied, she would

have applied for Pandemic Unemployment Assistance (federal

unemployment benefits) because (1) her Virginia job was put on

hold due to the pandemic; (2) she was told to apply for

unemployment benefits in Colorado since she had not yet worked in

Virginia or established residency there; and (3) even after she began

working, it was on a part-time, hourly basis, instead of the full-time

3

salaried position she had been promised. Bellemare contended that

it was the system’s fault because it was a year before she was told

she did not qualify for state unemployment benefits.

¶ 6

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

that Bellemare was not eligible for state unemployment benefits

because she had left her employment with Keystone as a matter of

personal preference to move out of the state. But the Panel

remanded the case for the Division to determine two issues:

1. whether the overpaid amount should be waived because

it would be inequitable to require Bellemare to repay it;

and

2. whether Bellemare was eligible for federal unemployment

benefits and, if so, whether those benefits could be

backdated to the date she became unemployed.

II. Finality

¶ 7

Because the Panel’s order included a remand, we must

determine whether the order is final and appealable.

¶ 8

We may only review a Panel’s order if it is a “final decision.”

§ 8-74-107(2), C.R.S. 2021; see also § 13-4-102(2)(a), C.R.S. 2021

(conferring jurisdiction on the court of appeals to review the Panel’s

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awards or actions as provided in article 74 of title 8). An order is

final if it “completely determines the rights of the parties without

further action by the tribunal.” Agren, Blando & Assocs., Inc. v.

Oleston, 746 P.2d 68, 69 (Colo. App. 1987).

¶ 9

The Panel’s order did not completely determine Bellemare’s

rights without further action by the Division. After affirming the

hearing officer’s decision that Bellemare was not entitled to state

unemployment benefits, the order included a remand for the

Division to determine whether Bellemare was entitled to (1) a waiver

for the overpaid amount; and (2) federal unemployment benefits.

For that reason, we conclude that the order is not final and

appealable.

¶ 10

The Panel’s label of “Final Order” does not alter our

conclusion. We may disregard the Panel’s designation of finality

when it incorrectly characterizes the order. In this case, the Panel’s

order did not put an end to the controversy because it required

further action by the Division to determine Bellemare’s rights. See

id. (disregarding the Panel’s caption of “Final Order” because the

order — that concluded the claimant had good cause for her late

appeal of the hearing officer’s adverse decision — did not “put an

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end to the controversy” but “pave[d] the way for further action by

the Panel to determine the merits of [the] claimant’s appeal”).

¶ 11

We recognize that a portion of the order may be considered

final because the Panel affirmed the hearing officer’s decision that

Bellemare was not entitled to state unemployment benefits — a

separate issue from whether she was entitled to a waiver or federal

unemployment benefits. See Velo v. Emp. Sols. Pers., 988 P.2d

1139, 1141 (Colo. App. 1998) (concluding that the Panel’s order was

final because it affirmed the hearing officer’s decision that the

claimant was disqualified from receiving unemployment benefits

based on the circumstances of his job separation, even though the

hearing officer had remanded the claim for the Division to

determine the claimant’s eligibility for unemployment benefits

based on his rejection of certain job offers).

¶ 12

Yet, Bellemare does not dispute that portion of the Panel’s

order. In the opening brief, Bellemare admits that she left her

employment with Keystone to move to another state, and she does

not challenge the hearing officer’s decision that, based on the

reason she left the employment, she was disqualified from receiving

state unemployment benefits.

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¶ 13

Instead, it appears that Bellemare misread the Panel’s order

because she requests the same relief that the Panel already granted

to her. In the notice of appeal, Bellemare asks for us to remand her

claim to the Division for them to determine her entitlement to (1) a

waiver of the overpaid amounts; and (2) federal unemployment

benefits. Then, in the opening brief, she reiterates her arguments

that (1) she would have applied for federal unemployment benefits if

the Division had not waited a year to notify her that she did not

qualify for state unemployment benefits; (2) it was the system’s

fault; and (3) she should not be found at fault.

¶ 14

Under these circumstances, we conclude the Panel’s order was

not final and appealable. Thus, we lack jurisdiction to consider it.

III. Conclusion

¶ 15

The appeal is dismissed.

JUDGE DAILEY and JUDGE DUNN concur.