Hassan v. ICAO

24CA0823 Hassan v ICAO 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0823

Industrial Claim Appeals Office of the State of Colorado

DD No. 8245-2024

Aden Hassan,

Petitioner,

v.

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

Unemployment Insurance Customer Service Center,

Respondents.

ORDER AFFIRMED

Division V

Opinion by JUDGE GROVE

Freyre and Lum, JJ., concur

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

Announced September 5, 2024

Aden Hassan, Pro Se

No Appearance for Respondent

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¶ 1 In this unemployment benefits case, claimant, Aden Hassan,

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

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

Hassan’s administrative appeal after he failed to appear for two

hearings. We affirm the Panel’s order.

I. Background

¶ 2 Hassan applied for unemployment benefits. In February 2024,

a deputy for the Division of Unemployment Insurance (Division)

determined that Hassan was not eligible to backdate his claim for

benefits due to untimeliness. Hassan appealed the deputy’s

decision, and the Division set a hearing for March 14, 2024.

Hassan failed to participate in the hearing, and his appeal was

dismissed.

¶ 3 After Hassan emailed the Division a request for a new hearing,

the Division set a second hearing for April 15, 2024. Hassan did

not participate in that hearing either, and his appeal was dismissed

for failing to participate in a second hearing. Hassan appealed the

dismissal to the Panel, admitting that he did not check in for the

first hearing, and that when he tried to check in for the second

hearing, “it did not go through.”

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¶ 4 The Panel affirmed the dismissal of Hassan’s administrative

appeal, holding that under Department of Labor & Employment

Regulation 12.1.3.5, 7 Code Colo. Regs. 1101-2, if the party who

appeals a decision fails to participate for two scheduled hearings as

directed, “the appeal shall be dismissed and the deputy’s decision

shall become final.” The Panel concluded that the hearing officer

correctly applied Regulation 12.1.3.5, and that the deputy’s

decision was final.

II. Analysis

¶ 5 In this appeal, Hassan asserts that he missed the first hearing

after unsuccessfully attempting to check in by phone. He alleges he

missed the second hearing because his attempt to check in online

did not go through. He states that his “technology knowledge is

limited,” and that “navigating the unemployment portal poses a

significant challenge.” He also contends that he “found himself

without a job” and did not receive his last two hours’ compensation.

¶ 6 After reviewing the record and applying the applicable

standard of review, we uphold the Panel’s determination that

Hassan was not entitled to a third hearing. See § 8-74-107(6)(c)-(d),

C.R.S. 2024 (appellate court may set aside a Panel’s determination

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if the findings of fact do not support the decision or the decision is

erroneous as a matter of law); Huddy v. Indus. Claim Appeals Off.,

894 P.2d 60, 62 (Colo. App. 1995) (appellate court’s review of

unemployment compensation orders is limited to grounds provided

in section 8-74-107).

¶ 7 Regulation 11.2.9.2 states that “[p]arties may be required to

register for their hearing prior to the scheduled date and time of the

hearing. Registration shall be considered part of the hearing

process and failure to register for a scheduled hearing shall

constitute a failure to appear.” Dep’t of Lab. & Emp. Reg. 11.2.9.2,

7 Code Colo. Regs. 1101-2.

¶ 8 Hassan admits he was aware of the requirement to register by

checking in, either by phone or online, before his hearings. In his

administrative appeal to the Panel, he admitted that he did not

check in for the first hearing. In this appeal, he asserts that an

operator told him he was checked in but then later told him he was

not. He then explains that, because he did not want to rely on the

phone process for the second hearing, he attempted to check in

online for the second hearing. That attempt was unsuccessful.

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¶ 9 If an appeal is dismissed because of an appealing party’s

failure to appear and the party requests a new hearing, “a

rebuttable presumption of good cause shall be established and a

new hearing shall be scheduled.” Dep’t of Lab. & Emp. Reg.

12.1.3.4, 7 Code Colo. Regs. 1101-2. In this case, good cause was

presumed for Hassan’s failure to successfully check in for his first

hearing. But if the appealing party fails to participate as directed in

the first setting of a hearing on a deputy’s decision and then

subsequently fails to participate as directed in the second setting of

a hearing, “good cause may not be established” and “the appeal

shall be dismissed and the deputy’s decision shall become final.

Dep’t of Lab. & Emp. Reg. 12.1.3.5, 7 Code Colo. Regs. 1101-2.

¶ 10 After Hassan’s failed attempt to check in for his first hearing,

he was granted a second hearing. That hearing notice, mailed to

Hassan on March 22, 2024, provided, in boldface type with portions

in all capital letters, the following:

HEARING INFORMATION FOR CLAIMANT AND EMPLOYER

You must CHECK IN for your hearing AS

SOON AS POSSIBLE and NO LATER than 2

P.M. the DAY BEFORE YOUR HEARING. You

will need the DOCKET NUMBER in the upper

right corner of this notice. We encourage you

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to complete the check in process THE SAME

DAY THAT YOU RECEIVE THIS NOTICE.

¶ 11 The hearing notice also described the procedure for checking

in online and provided a telephone number to call if unable to do

so. Additionally, the notice warned Hassan in two places that

failing to timely check in would result in the dismissal of his appeal.

Finally, the notice stated that this was a second hearing scheduled

due to the failure of Hassan to appear at a first hearing.

¶ 12 The Panel noted that it emailed questions to Hassan, which he

answered on April 23, 2024. He admitted that he received the

second hearing notice at the “end of March.” He stated that he

checked in before 2 p.m. on April 14, 2024, but when asked the

exact time, he did not provide a time. He contended that he “did

not know how to check in accurately.”

¶ 13 The Panel concluded that, while Hassan claimed he checked in

timely, a dismissal nevertheless was issued because he had not

registered by 2 p.m. that day or any day prior. The Panel also

observed that “whether good cause for missing the second hearing

is lacking or not, Regulation 12.1.3.5 provides that even if there is

‘good cause,’ missing a second hearing may not be excused.” The

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hearing officer correctly applied Regulation 12.1.3.5, and the

deputy’s decision therefore is final.

¶ 14 After reviewing the entire record, we affirm the Panel’s

decision. The Panel was required to apply the plain language of the

applicable regulations. Dep’t of Revenue v. Agilent Techs., Inc., 2019

CO 41, ¶ 25 (when a regulation’s language is clear and

unambiguous, it must be applied as written). Because Hassan

failed to appear at two hearings, the regulations required that his

appeal be dismissed. We conclude that the Panel correctly applied

the regulations to uphold the dismissal of Hassan’s administrative

appeal.

III. Disposition

¶ 15 The Panel’s order is affirmed.

JUDGE FREYRE and JUDGE LUM concur.