Thompson v. ICAO

25CA0164 Thompson v ICAO 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0164
Industrial Claim Appeals Office of the State of Colorado
DD No. 28897-2024

Michael Thompson,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Troys Vujcich
Automative Inc.,

Respondents.

ORDER SET ASIDE AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by JUDGE TAUBMAN*
Román, C.J., and Martinez*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Michael Thompson, Pro Se

No Appearance for Respondent Industrial Claim Appeals Office of the State of
Colorado

Troy Vujcich, Authorized Representative, Pueblo, Colorado, for Respondent
Troys Vujcich Automative Inc.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Michael Thompson appeals the denial of his application for

unemployment compensation benefits. We set aside the order and

remand with directions to return the case to the hearing officer for

entry of an order awarding unemployment compensation benefits.

I. Overview

¶2 Thompson worked for Troy’s Vujcich Automotive, Inc.1 as an

auto technician for three years. The relevant events surrounding

Thompson’s job separation occurred between September and

November 2023. It is undisputed that Thompson informed the

owner, Troy Vujcich, that he had carpal tunnel surgery scheduled

for September 6 and would be physically unable to work in his

technician position for six weeks.

¶3 Vujcich contends that Thompson quit his employment before

the surgery, in a conversation on September 1. Thompson

acknowledges that he spoke with Vujcich about his upcoming

surgery, but that he did not quit. Instead, Thompson alleges that

1 It appears that this entity is appearing without representation by

an attorney or a showing that it is entitled to do so under section
13-1-127 (2), C.R.S. 2024. Because the answer brief is only two
paragraphs and contains no new legal issues, we determine that we
may disregard this apparent error.

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the day before the surgery, Vujcich agreed to keep his job open.

The parties dispute whether Thompson was then on an unpaid

medical leave of absence. The parties also dispute whether another

conversation took place in November where Vujcich discharged

Thompson after Thompson told him he was medically cleared to

return to work.

II. Procedural Background

¶4 Thompson applied for unemployment compensation benefits,

but his application for benefits is not in the record. On February 5,

2024, a deputy for the Division of Unemployment Insurance granted

his application under section 8-73-108(4)(a), C.R.S. 2024. Under

that provision, an individual separated from a job must be given a

full award of benefits if the individual was laid off due to a lack of

work. Vujcich appealed the deputy’s determination, asserting that

Thompson quit his employment and was not laid off. A series of

hearings followed.

A. First Hearing

¶5 After a June 2024 hearing (the first hearing), the hearing

officer affirmed the deputy’s determination, but did not specifically

rely on subsection (a) of section 8-73-108(4). Instead, the hearing

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officer found that Thompson was generally entitled to benefits

under section 8-73-108(4), which provides numerous grounds

supporting a benefit award, including a physical inability to do the

work.

¶6 The hearing officer found that Vujcich discharged Thompson

during a phone call on November 15, 2023, while Thompson was

recovering from carpal tunnel surgery. The hearing officer also

found that, contrary to Vujcich’s testimony, Thompson did not quit

his job on September 1, 2023. Therefore, the hearing officer

determined that Thompson was not at fault for the job separation,

and that Vujcich discharged him while he was still employed but

physically unable to work.

B. First Remand

¶7 Vujcich appealed to the Industrial Claim Appeals Office (the

Panel), which set aside and remanded the hearing officer’s decision

for further proceedings. The Panel noted that the claim file, entered

into the record as Exhibit AA, did not include Thompson’s initial

filing for benefits. Because the hearing notice provided that “before

the hearing, you must disclose everything you plan to talk about

related to the issues under appeal,” the Panel determined that

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Thompson “failed to provide any information related to being laid off

for a lack of work or his contention that he was fired.”2

¶8 The Panel thus concluded that the factual issues of being laid

off for a lack of work or being fired “were not properly disclosed

prior to the hearing.” The Panel then remanded with instructions

for the hearing officer to permit Thompson “to present evidence

sufficient to determine if [Thompson] has good cause for his failure

to disclose the circumstances of being laid off for a lack of work.”

C. Second Hearing

¶9 Another hearing was held before the same hearing officer in

August 2024 (the second hearing). Thompson testified that he

initially filed his unemployment compensation benefits claim by

phone. During that phone call, Thompson said, he told the Division

representative that on November 15, he received a call from

Vujcich, who said Thompson no longer had a job and told him to

gather his tools from the employer’s premises.

2 We believe this is incorrect.
During the first hearing, the hearing
officer admitted documents submitted by both parties, and included
Thompson’s documents, as well as a recording, as his Exhibit A,
and Vujcich’s two documents as Exhibit 2. The documents and
recording in Exhibit A provided information to support Thompson’s
argument that he believed he had been laid off or fired.

4
¶ 10 The hearing officer concluded that Thompson had shown good

cause for not previously disclosing his contention that he separated

from this employment due to a discharge or for lack of work. The

hearing officer observed that “for reasons unknown” to either

Thompson or Vujcich, Thompson’s “original job separation

information” that he provided by phone to the representative “was

not sent to either party or to the hearing officer.” The hearing

officer concluded that this constituted administrative error by the

Division, which is one of the factors to be applied in a good cause

analysis.

¶ 11 The hearing officer then took further testimony from both

Thompson and Vujcich and considered additional evidence

submitted for the second hearing. The hearing officer again

concluded that “contrary to the employer’s testimony,” Thompson

“did not quit this job on September 1,” and that Vujcich discharged

Thompson “in a phone call on November 15, 2023, for the reasons

testified to by [Thompson].” Therefore, the hearing officer again

determined that Thompson was entitled to an award of benefits

under section 8-73-108(4).

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D. Second Remand

¶ 12 Vujcich appealed to the Panel, which again set aside the

hearing officer’s order and remanded for further proceedings. The

Panel determined that the hearing officer had “failed to follow [the]

remand instructions.” The Panel recognized that “any information

that [Thompson] may have given to the Division regarding his

separation . . . was not included in the claim file material.” The

Panel then held that, because the notice of the first hearing

required Thompson to provide everything he “planned to talk about”

during the hearing, he was required to “resubmit information he

apparently told the Division.”

¶ 13 The Panel remanded again, specifically instructing for the

hearing officer to question Thompson about whether he had “read

the back of the hearing notice” and why he did not “resend”

information that was “not in the claim file.”

E. Third Hearing

¶ 14 A third hearing was then held before a new hearing officer (the

new hearing officer). The new hearing officer acknowledged that

there had been two prior hearings in the matter, and that the Panel

had remanded for the “taking of additional specific testimony as to

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a good cause issue.” The new hearing officer explained that “this is

not a new hearing,” and advised that “the testimony and evidence

that was submitted in the prior hearings are included in the record

of this hearing.” The new hearing officer also said that he had

listened to the recordings of both hearings and had reviewed the

evidence in the record, and would be taking no additional testimony

on the “circumstances of [Thompson’s] separation from

employment, as all of that testimony has already been provided” in

the prior hearings.

¶ 15 The new hearing officer then asked Thompson questions

regarding the good cause factors, as directed by the Panel. Those

questions included whether Thompson had received the hearing

notice, had read the notice, and had understood the directions.

Thompson answered in the affirmative. The new hearing officer

then asked, “was there anything that prevented you from filing any

type of statements . . . that would indicate why you believe that you

were separated from employment?” Thompson responded, “Oh, I

thought I had put that information in there.” The new hearing

officer then asked whether he understood that he needed to file a

statement as to whether he was discharged or laid off. Thompson

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responded, “I thought I filed that with the evidence I sent in though.

There was a recording and a bunch of paperwork that I filed as

evidence.”

¶ 16 The new hearing officer again asked if Thompson had read the

directions on the hearing notice, and Thompson responded that he

had. The new hearing officer then told Thompson that “the [Panel]

is indicating that you did not announce that there was a new issue

that was being heard in this matter. The issue that was announced

in the hearing was that you were laid off from this employment.

You then stated you were discharged, which is considered a new

issue.” The new hearing officer told Thompson, “that issue was not

announced or you did not present any information on that issue

prior to the [first hearing].”

¶ 17 Thompson then attempted to explain that he had uploaded

documents for the first hearing and had emailed them to Vujcich.

But the new hearing officer said, “Okay. Stop there, Mr.

Thompson.” The new hearing officer then determined that

Thompson “does not have good cause for announcing the new issue

or for notifying the employer or the hearing department of the new

issue, as [he] did receive timely notice of the need to act.”

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¶ 18 The new hearing officer issued a decision concluding that

Thompson was not entitled to unemployment compensation

benefits because he had quit for personal reasons, citing section 8-

73-108(5)(e)(XXII). The new hearing officer then made findings that

contradicted the first hearing officer’s findings, including that “on or

about September 1,” the parties met, and Thompson told Vujcich he

was resigning. The new hearing officer found that “Vujcich

accepted the resignation” at that time, and only contacted

Thompson in November to discuss retrieving his tools.

¶ 19 After weighing the good cause factors, the new hearing officer

found that “there were no circumstances that prevented

[Thompson] from taking timely action to file a statement regarding

what he believed the circumstances of his separation from

employment were.” Therefore, the new hearing officer concluded

that Thompson had failed to show good cause and that he was

disqualified from receiving benefits.

F. Final Panel Order

¶ 20 Thompson appealed the hearing officer’s decision, contending

that he “did upload nine documents and one audio file for the

original hearing. I am not sure why the claims office does not see

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this.” He also argued that the new hearing officer was “biased, cut

me off while I was speaking, and did not allow for me to state that I

uploaded the documents as per the back page of the notice.” He

then attached emails that showed files he had submitted in May

2024 before the first hearing.

¶ 21 The Panel affirmed the new hearing officer’s decision,

concluding that “there were no administrative errors by the Division

in this matter.” The Panel acknowledged that Thompson contended

that the nine documents he uploaded, and the audio file, were

“evidence of his factual contentions concerning his separation.”

However, the Panel said it found “no error in the hearing officer’s

good cause determination.” The Panel disagreed with Thompson’s

contention that the hearing officer had cut him off. The Panel then

determined that the new hearing officer’s recitation of the facts

surrounding the job separation also contained no error.

¶ 22 The Panel acknowledged the finding that Thompson had

“worked for the employer from August 8, 2020 through November

15, 2023,” but said that “we rely on the [new] hearing officer’s

findings that [Thompson] resigned during a meeting on September

10
1.” The Panel affirmed the denial of benefits on the ground that

Thompson had quit his employment.

III. Legal Principles and Standard of Review

¶ 23 We may set aside the Panel’s decision if the factual findings

are not supported by substantial evidence, if the factual findings do

not support the legal conclusion, or if the decision is erroneous as a

matter of law. § 8-74-107(4), (6), C.R.S. 2024; Yotes, Inc. v. Indus.

Claim Appeals Off., 2013 COA 124, ¶ 9, 310 P.3d 288, 290.

Substantial evidence is that quantum of probative evidence that a

rational fact finder would accept as adequate to support a

conclusion, without regard to the existence of conflicting

evidence. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414

(Colo. App. 1995).

¶ 24 The disqualifying provisions of section 8-73-108(5)(e) “must be

read in light of the express legislative intent set forth in [section 8-

73-108(1)(a)] to provide benefits to those who become unemployed

through ‘no fault’ of their own.” Cole v. Indus. Claim Appeals Off.,

964 P.2d 617, 618 (Colo. App. 1998). “‘[F]ault’ is a term of art

which is used as a factor to determine whether the claimant or the

11
employer is responsible overall for the separation from

employment.” Id.

¶ 25 “[W]hether a claimant is at fault for a separation from

employment . . . must be determined on a case-by-case basis, with

due consideration given to the totality of the circumstances in each

particular situation.” Morris v. City & Cnty. of Denver, 843 P.2d 76,

79 (Colo. App. 1992).

IV. Thompson’s Contentions

¶ 26 Representing himself on appeal, Thompson contends that:

• The first hearing officer’s award of unemployment

compensation benefits was correct, and he provided

enough information at the first hearing to support his

contentions.

• One of the exhibits he submitted for the first hearing was

an audio recording of his conversation with Vujcich on

September 5, and the recording, which has “yet to be

reviewed in this matter,” shows that Vujcich told

Thompson that his job would be held open while he was

out on medical leave for surgery.

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• The evidence he submitted to prove that he was out on

medical leave after the surgery was not considered.

V. Analysis

¶ 27 After a thorough review of the record, we conclude that we

must set aside the Panel’s determination as not supported by

substantial evidence in the record and erroneous as a matter of law.

A. Good Cause

¶ 28 At the outset, we find error in the Panel’s conclusion that

Thompson failed to show good cause for not “announcing” a new

issue about the reasons he asserted for his discharge. To the

contrary, we agree with Thompson that he sufficiently explained

during his testimony the reasons he thought he was laid off or

discharged, and his testimony was supported by the audio

recording and documents he submitted to the division and to

Vujcich before the first hearing.

¶ 29 Vujcich admitted at the first hearing that he had received the

documents and the recording. The recording was admitted into

evidence as part of Thompson’s Exhibit A, but it was not played at

the hearings, and neither hearing officer described the contents of

the recording. The first hearing officer allowed Thompson to testify

13
as to some of the recording’s contents, however, and ultimately

found that Vujcich agreed to hold Thompson’s job open during the

surgery, which supports Thompson’s argument that he was then

laid off or discharged in November.

¶ 30 We note that Vujcich objected to the admission of the

recording, but was overruled, and that the Panel, in its first remand

order, held that the recording had been properly admitted into

evidence. The Panel noted that, because Thompson emailed the

recording to Vujcich the night before the hearing, Thompson had

complied with the applicable regulations.

¶ 31 Further, Thompson testified during the second hearing that

when he applied for benefits, he told the Division representative

that Vujcich had called him on November 15 to tell him to come get

his tools, that his services were no longer needed, that Vujcich was

going to take over his bay, and there was no longer a place for him

to work. Thompson testified that, “in essence, I could see how that

means if I’m not going to have a place to work, that could be letting

me go, I could see that as a way of being laid off.” The first hearing

officer credited this testimony and found that Thompson had

14
sufficiently explained that he had been laid off for a lack of work

before applying for benefits.

¶ 32 Given that the Division erred in not having a complete claim

file, we disagree that Thompson, who testified as to his conversation

with the Division to apply for benefits, somehow is to blame for the

lack of written documentation in the claim file regarding his reason

for discharge. We thus determine that the Panel erred when it

concluded that Thompson had failed to show good cause for his

alleged “failure to disclose everything he planned to talk about

related to the issue on appeal.”

¶ 33 We determine that the Panel’s conclusion on the good cause

issue must be set aside. In the Panel’s first remand order, it

instructed the first hearing officer to determine the good cause

issue, and, if the hearing officer determined that “good cause does

exist, he shall permit the employer to cross-examine [Thompson]

about the issue and present relevant evidence concerning the issue,

subject to [Thompson]’s cross-examination and rebuttal.” That is

exactly what the hearing officer did. During the second hearing, he

heard further testimony from both parties and allowed cross-

examination and rebuttal. The Panel must review a hearing officer’s

15
decision based on the evidence in the record previously submitted

in the case. Alfaro v. Indus. Claim Appeals Off., 78 P.3d 1147, 1149

(Colo. App. 2003).

B. Conflicting Evidence

¶ 34 The new hearing officer did not take any evidence regarding

the job separation, but limited the testimony to the good cause

issue. All the evidence concerning the job separation was admitted

during the first two hearings. Based on that evidence, the first

hearing officer twice concluded that Thompson was entitled to

benefits. The second hearing officer made the opposite conclusion.

We cannot determine if the second hearing officer did so because he

determined he could not consider any of Thompson’s evidence due

to the good cause issue, and instead relied only on Vujcich’s

evidence. In any event, he did not explain why he found Vujcich’s

testimony more credible when the first hearing officer twice had

discredited it.

1. Recording

¶ 35 Thompson argues on appeal that his recording, “which has yet

to be reviewed in this matter” supports his testimony that he did

not quit on September 1. We agree that it is unclear whether either

16
hearing officer listened to the recording. Because it is in the record,

we have listened to the recording and agree that (1) the recorded

conversation occurred the day before surgery (September 5), not

September 1; and (2) Vujcich clearly stated, about a minute into the

recording, “but if you want me to hold the job open, I will.”

¶ 36 In the recording, the parties seemed to agree that a “service

writer” position would not be open, but the parties also discussed

the possibility of Thompson returning to a “wrenching” job after

surgery. The recording supports the undisputed testimony that in

some prior conversations, Thompson expressed to Vujcich his

frustration with his upcoming surgery, his physical inability to do

the tech job, and whether he could instead work in the service

writer job. In the recording, Vujcich advised there was not

currently a service writer position available, and that he did not

anticipate “firing one of his own kids” who held that position.

During the recording, Thompson did not state that he was resigning

or quitting his position.

2. Medical Leave of Absence

¶ 37 Thompson also contends that evidence considering his

medical leave of absence was not considered. Specifically, he points

17
to a letter in the record as part of Exhibit A, on the employer’s

letterhead dated October 23, stating that Thompson was on a

medical leave of absence beginning on September 6. While the

parties disputed whether the signature on the letter belonged to

Troy Vujcich or Tyler Vujcich, the shop manager, or whether the

letter was a forgery, that issue was never resolved or addressed.

¶ 38 Also in evidence were screenshots of texts and a doctor’s note

demonstrating that Thompson had advised both Troy and Tyler

Vujcich on November 9 that a doctor had cleared him to work

without restrictions on December 4. Tyler responded, “great,” and

Troy responded, “nice,” but then said he wanted to talk to

Thompson before that. This issue also was never resolved.

3. November 15 Phone Call

¶ 39 There is conflicting evidence in the record regarding phone

records submitted during the second hearing and the parties’

testimony concerning the November 15 phone call. At the first

hearing, Vujcich testified that he “may have” called Thompson on

November 15. The first hearing officer asked him, “what would be

the purpose of you calling him on November 15th?” Vujcich

responded:

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To come remove his toolbox from my business
because he already knew that he was -- I let
him go on the 9th, and he already knew that.
But he didn’t give me a date when he was
going to bring his box in, and I had another
guy starting right around that Friday. So
that’s why I wanted him to get his box out of
here.

¶ 40 The first hearing officer then said, “I’m just a little confused by

your testimony. He quit September first and you decided November

ninth you’re not bringing him back. I got a conflict there.” Vujcich

did not explain why he stated that he “let him go on the ninth” but

instead again testified that Thompson had quit on September 1.

¶ 41 At the first hearing, Thompson’s friend, Robert Madrid,

testified that he was with Thompson at lunch on November 15 when

he heard a conversation on Thompson’s speaker phone in which

Vujcich discharged Thompson that day. The first hearing officer

credited that testimony.

¶ 42 During the second hearing, there was conflicting testimony as

to whether the November 15 call came from Vujcich’s personal line

or the shop line, and whether the call was made by Vujcich or his

son Tyler, who also testified at the second hearing. The first

hearing officer asked Thompson who called him on November 15

19
from the shop number. Thompson replied, “Troy Vujcich.” The first

hearing officer then asked, “Did Tyler Vujcich call you from that

same number that same day?” Thompson testified, “Absolutely

not.”

¶ 43 After hearing this testimony and reviewing the phone records,

the first hearing officer was persuaded by Thompson’s testimony

that “he was discharged by the owner on November 15, 2023,

during the owner’s phone call to [Thompson].” And the hearing

officer “was not persuaded by the employer’s testimony that

[Thompson] quit this job or that the owner did not speak to

[Thompson] by phone on November 15, 2023.”

C. Substantial Evidence Standard

¶ 44 Under section 8-74-107, we must set aside a Panel’s order if it

is not supported by substantial evidence in the record. Evidence

that is probative, credible, and competent, such that it warrants a

reasonable belief in the existence of a particular fact without regard

to contradictory testimony or inference, is considered substantial

evidence. Life Care Ctrs. of Am. v. Indus. Claim Appeals Off., 2024

COA 47, ¶ 14, 553 P.3d 905, 908. Mere conclusions thus do not

suffice. Wecker v. TBL Excavating, Inc., 908 P.2d 1186, 1188-89

20
(Colo. App. 1995) (“[E]vidence is not substantial if it . . . constitutes

a mere conclusion.”). We decide as a matter of law whether

substantial evidence exists. Pub. Serv. Co. of Colo. v. Pub. Utils.

Comm’n, 26 P.3d 1198, 1205 (Colo. 2001).

¶ 45 After a thorough review of the record, we conclude that

substantial evidence does not support the Panel’s ultimate legal

conclusion that Thompson resigned his employment and was

disqualified from receiving benefits. Therefore, we must set aside

the Panel’s order. We also determine that substantial evidence in

the record supports an award of unemployment compensation

benefits, for the reasons thoroughly explained in this opinion.

VI. Disposition

¶ 46 We set aside the order and remand to the Panel with directions

to return the case to the hearing officer for entry of an order

awarding Thompson unemployment compensation benefits.

JUDGE ROMÁN and JUSTICE MARTINEZ concur.

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