21CA1504 Cleveland v ICAO 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1504

Industrial Claim Appeals Office of the State of Colorado

DD No. 27807-2021

Taylor Cleveland,

Petitioner,

Industrial Claim Appeals Office of the State of Colorado and Adams QB Inc.,

Respondents.

ORDER AFFIRMED

Division II

Opinion by JUDGE KUHN

Furman and Pawar, JJ., concur

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

Announced January 20, 2022

Taylor Cleveland, Pro Se

No Appearance for Respondents

¶ 1 In this unemployment benefits case, claimant, Taylor

Cleveland, seeks review of a final order of the Industrial Claim

Appeals Office (Panel). We affirm the Panel’s order.

I. Background

¶ 2 Cleveland applied for unemployment benefits the day she

separated from her employment with Adams QB Inc. A deputy for

the Division of Unemployment Insurance issued a decision

determining, as relevant here, that (1) Adams paid Cleveland $1,250

in wages during her base period of July 1, 2019, to June 30, 2020;

and (2) the Division had overpaid Cleveland unemployment benefits

in the amount of $2,074.

¶ 3 Cleveland appealed the deputy’s decision, asserted that Adams

had not correctly reported her wages, and supplied copies of her

pay stubs. After considering the records Cleveland submitted, the

deputy issued a redetermination, concluding that the wages

reported by Adams were correct because wages earned before or

after the base period could not be used in this claim.

¶ 4 Cleveland next appealed the deputy’s redetermination. She

asserted that her base period should be October 1, 2019, to

December 30, 2020 — the last day she worked for Adams and the

date she filed her claim for unemployment benefits.

¶ 5 After an administrative hearing, the hearing officer affirmed

the deputy’s decision, concluding that (1) Adams had correctly

reported Cleveland’s wages; and (2) Cleveland’s base period was

July 1, 2019, through June 30, 2020. In support of those

conclusions, the hearing officer made the following findings of fact:

• The effective date of Cleveland’s unemployment benefits

claim was December 27, 2020.

• Cleveland worked for Adams from June 8, 2020, through

December 30, 2020.

• Cleveland’s first pay period with Adams was June 1,

2020, through June 14, 2020. She was paid gross wages

on June 19, 2020, for that pay period in the amount of

$1,250.

• Cleveland’s second pay period with Adams was June 15,

2020, through June 28, 2020. She was paid gross wages

on July 3, 2020, for that pay period in the amount of

$2,500.

• Although Cleveland earned wages for the second pay

period in June 2020, she was not paid for those wages

until July 3, 2020.

• Adams was only required to report wages for the second

quarter of 2020 that had actually been paid to Cleveland

in June 2020.

• Wages for the second pay period in June were paid in the

third quarter of 2020, and thus fell outside of Cleveland’s

base period for this claim.

¶ 6 Cleveland appealed the hearing officer’s decision to the Panel,

arguing that (1) the hearing officer did not consider certain facts

that were “critical to [her] case and the decision,” including the

circumstances surrounding the separation of her employment with

Adams, the difficulty she had in communicating with the Division,

the inconsistent advice she received from customer service

representatives, and the fact that this would not be an issue if she

had filed her claim two days later; and (2) the total amount she

earned from Adams in June 2020 should be included in her base

period, regardless of when she was paid.

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

concluding that the hearing officer properly determined that the

wages in the second pay period should not be included in

Cleveland’s base period because, although those wages had been

earned, they had not been paid during her base period.

II. Analysis

¶ 8 Cleveland challenges the hearing officer’s finding that the

wages she earned from Adams during the second pay period should

not be included in her base period because they were not paid until

the following month. She contends that the wages she earned

during her base period should be included regardless of when they

were paid. She also reiterates her difficulties in communicating

with the Division, the inconsistent advice she received, the timing of

her claim filing, and the circumstances surrounding the separation

of her employment with Adams.

¶ 9 After reviewing the record evidence and applying our

applicable standard of review, we conclude that we cannot disturb

the hearing officer’s findings.

A. Standard of Review

¶ 10 “We review de novo the Panel’s legal conclusions, including its

statutory interpretations.” 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. 2021.

¶ 11 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).

B. Base Period

¶ 12 We first conclude that the hearing officer properly determined

that Cleveland’s base period was July 1, 2019, through June 30,

2020.

¶ 13 A claimant’s base period is comprised of “the first four of the

last five completed calendar quarters immediately preceding the

first day of the individual’s benefit year.” § 8-70-103(2), C.R.S.

2021. “If the individual files a claim on a Monday, Tuesday, or

Wednesday, the first day of the first week in the claims series shall

begin on the Sunday immediately preceding the day on which said

claim was filed.” Dep’t of Lab. & Emp. Reg. 2.3.5.1, 7 Code Colo.

Regs. 1101-2.

¶ 14 The hearing officer’s findings about when Cleveland’s base

period started are supported by the record. Cleveland filed her

claim for unemployment benefits on December 30, 2020, which was

a Wednesday. So, the first day of Cleveland’s claim was the Sunday

before she filed the claim, December 27, 2020. Thus, Cleveland’s

base period was the first four of the last five completed calendar

quarters immediately preceding December 27, 2020 — that is, July

1, 2019, through June 30, 2020.

C. Wages Included in the Base Period

¶ 15 Next, we conclude that the hearing officer properly determined

that only the wages paid to (and not earned by) Cleveland should be

included in her base period.

¶ 16 When interpreting statutes, we seek to give effect to the

legislature’s intent. See Keysight Techs., Inc. v. Indus. Claim

Appeals Off., 2020 COA 29, ¶ 11. “To do that, we always start with

the statute’s language, giving words their plain and ordinary

meanings.” Cath. Health, ¶ 15. “If the language is clear, we apply it

as written and need not resort to other tools of statutory

interpretation.” Keysight, ¶ 11.

¶ 17 The legislature defined wages as “[a]ll remuneration for

personal services, including the cash value of all remuneration paid

in any medium other than cash.” § 8-70-141(1)(a), C.R.S. 2021; see

also § 8-70-103(29) (referring to the definition of wages in section

8-70-141). The word remuneration means “to pay an equivalent to

(a person) for a service.” Webster’s Third New International

Dictionary 1921 (2002). In turn, the word pay means “to satisfy

(someone) for services rendered,” to “discharge an obligation to,”

and “to give in return for goods or service.” Id. at 1659.

¶ 18 So, the wages included in a claimant’s base period are the

monies that the employer has paid in exchange for services

rendered. The term does not include amounts that the claimant

has earned but that the employer has not yet paid.

¶ 19 Other statutes relating to a claimant’s benefits consistently

apply this definition of wages. First, to determine the duration of a

claimant’s benefits, the Division credits her with “the wages for

insured work paid during each quarter of such individual’s base

period.” § 8-73-104(1), C.R.S. 2021 (emphasis added). Second, the

individual’s weekly benefit amount is calculated based on “the

wages paid” to her. § 8-73-102(1)(a), C.R.S. 2021 (emphasis added).

Finally, an individual is only eligible to receive benefits if she has

been “paid wages for insured work” during her base period that are

equal to a certain amount. § 8-73-107(1)(e), C.R.S. 2021 (emphasis

added).

¶ 20 If the legislature had intended to define wages as those a

claimant earned during her base period, it could have said so.

Indeed, the legislature used such language for determining an

individual’s ongoing eligibility to receive benefits, stating the

individual would only receive those benefits if her “total wages

earned for the week are less than [her] weekly benefit amount.”

§ 8-73-107(1)(f) (emphasis added).

¶ 21 Because the language is clear, we must apply it as written.

The record supports the hearing officer’s determination that

Cleveland was only paid $1,250 by Adams during her base period.

For that reason, those are the only wages that may be included in

Cleveland’s base period for this claim.

¶ 22 We recognize, as Cleveland states, that her base period would

have shifted so that it would have included other wages paid by

Adams if she had filed her claim just two days later. We also accept

her statements that she faced multiple difficulties in pursuing her

claim. However, it is not within our power to rewrite a statute

because a claimant perceives that it would be fairer. See Keysight,

¶ 18 (“Any modification of the statute required to make it ‘fairer’ . . .

is a task for the General Assembly, not for a division of this court.”);

Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490, 494 (Colo.

App. 2008) (“Courts may not rewrite statutes to improve them.”).

¶ 23 Because the hearing officer’s findings are supported by

substantial evidence in the record and the Panel’s legal conclusions

are correct, we may not disturb them on review.

III. Conclusion

¶ 24 The Panel’s order is affirmed.

JUDGE FURMAN and JUDGE PAWAR concur.