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 cas e, claimant, Kristen Marie Bellemare, seeks review of an order of the Industrial Claim Appeals Office (Panel). The Panel affirmed t he hearing officer’s decision disqualifying Bellemare from r eceiving benefits based on her job separation from Keystone Achiev ements. However, the Panel also remanded Bellemare’s claim for other considerations. Because the Panel’s order is not a final, appeala ble order, we dismiss the appeal. I. Background ¶ 2 Bellemare applied for unemployme nt benefits after she resigned from her employment wit h Keystone to move to Virginia to be closer to family because she wa s pregnant. A deputy for the Division of Unemployment Insuran ce (Division) issued a decision determining that Bellemare did not qualify for state unemployment benefits because she had separat ed 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 d ecision. She admitted that she left Keystone to move to Virgi nia. But Bellemare stated that t he start date for the job she had set u p in Virginia had been delayed by 2 two weeks due to the COVID-19 p andemic and, once she started working, it was only part time, in stead of the full-time job she ha d been promised. ¶ 4 After a hearing, the hearing offic er affirmed the deputy’s decision, concluding that Bellemar e did not qualify for state unemployment benefits under sect ion 8-73-108(5)(e)(IV) because Bellemare left her employment wit h Keystone to move as a matter of personal preference. In support of that conclusion, the hearing officer found that Bellemare resign ed 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 off icer’s decision to the Panel. She argued that, if she had been t old that she did not qualify for state unemployment benefits wh en she first applied, she would have applied for Pandemic Unempl oyment Assistance (federal unemployment benefits) because ( 1) her Virginia job was put on hold due to the pandemic; (2) sh e was told to apply for unemployment benefits in Colorado sin ce she had not yet worked in Virginia or established residency t here; and (3) even after she began working, it was on a part-time, ho urly basis, instead of the full-tim e 3 salaried position she had been pro mised. Bellemare contended that it was the system’s fault becaus e it was a year before she was told she did not qualify for state unemp loyment benefits. ¶ 6 On review, the Panel affirmed the h earing officer’s decision that Bellemare was not eligible for state unemployment benefits because she had left her employm ent 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 sho uld be waived because it would be inequitable to requir e Bellemare to repay it; and 2. whether Bellemare was eligible for federal unemployment benefits and, if so, whether those b enefits could be backdated to the date she becam e unemployed. II. Finality ¶ 7 Because the Panel’s order includ ed a remand, we must determine whether the order is fina l and appealable. ¶ 8 We may only review a Panel’s ord er 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 4 awards or actions as provided in ar ticle 74 of title 8). An order is final if it “completely determines the rights of the parties without further action by the tribunal.” Ag ren, Blando & Assocs., Inc. v. Oleston , 746 P.2d 68, 69 (Colo. Ap p. 1987). ¶ 9 The Panel’s order did not complet ely determine Bellemare’s rights without further action by t he Division. After affirming t he hearing officer’s decision that Bell emare was not entitled to state unemployment benefits, the order included a remand for the Division to determine whether Bel lemare was entitled to (1) a waiver for the overpaid amount; and (2) f ederal unemployment benefits. For that reason, we conclude that the order is not final and appealable. ¶ 10 The Panel’s label of “Final Order” d oes not alter our conclusion. We may disregard the Panel’s designation of finality when it incorrectly characterizes t he order. In this case, the Panel’s order did not put an end to the con troversy because it required further action by the Division to d etermine Bellemare’s rights. See id. (disregarding the Panel’s caption of “Final Order” because the order — that concluded the claima nt had good cause for her late appeal of the hearing officer’s adve rse decision — did not “put an 5 end to the controversy” but “pave[d] t he way for further action by the Panel to determine the merits of [the] claimant’s appeal”). ¶ 11 We recognize that a portion of th e order may be considered final because the Panel affirmed t he hearing officer’s decision that Bellemare was not entitled to stat e unemployment benefits — a separate issue from whether she w as entitled to a waiver or federal unemployment benefits. See Velo v. Emp. Sols. Pers. , 988 P.2d 1139, 1141 (Colo. App. 1998) (con cluding that the Panel’s order was final because it affirmed the hear ing officer’s decision that the claimant was disqualified from r eceiving unemployment benefits based on the circumstances of his job separation, even though the hearing officer had remanded the c laim 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 disput e that portion of the Panel’s order. In the opening brief, Bellem are admits that she left her employment with Keystone to move to another state, and she does not challenge the hearing offic er’s decision that, based on the reason she left the employment, she was disqualified from receiving state unemployment benefits. 6 ¶ 13 Instead, it appears that Bellemare misread the Panel’s order because she requests the same r elief that the Panel already grant ed to her. In the notice of appeal, B ellemare asks for us to remand h er claim to the Division for them to determine her entitlement to (1) a waiver of the overpaid amounts; an d (2) federal unemployment benefits. Then, in the opening bri ef, 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 b enefits; (2) it was the system’s fault; and (3) she should not be fo und at fault. ¶ 14 Under these circumstances, we c onclude the Panel’s order was not final and appealable. Thus, w e lack jurisdiction to consider it. III. Conclusion ¶ 15 The appeal is dismissed. JUDGE DAILEY and JUDGE DUNN concur.