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McClaflin v. Industrial Claim Appeals Office of the State of Colorado10/6/2005
ORDER AFFIRMED
Graham, J., concurs
Marquez, J., dissents
Petitioner, Susan B. McClaflin (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer's decision determining that claimant was ineligible to receive unemployment benefits. We affirm.
A deputy determined that claimant was ineligible to receive benefits during the applicable period because she was not actively seeking work as required under the statutory scheme. See § 8-73-107(1)(g)(I), C.R.S. 2005. Claimant appealed, and the matter proceeded to a hearing.
The hearing officer found that claimant, a long-time employee of King Soopers (employer), was diagnosed with carpal tunnel syndrome and was placed on leave, during which she had surgery to correct her condition. He found that when claimant was eventually released to work, employer did not provide claimant with any work hours.
The hearing officer further found that claimant then filed a claim for unemployment benefits but did not attempt to seek other work, in part because her union agreement prohibited her from seeking or accepting other employment. He found that seeking other work could have jeopardized claimant's "disability" (that is, workers' compensation) claim. Nevertheless, the hearing officer found that, after filing her claim for unemployment benefits, claimant, by her own admission, did not contact any other employers and did not make an active search for work. After concluding that the work search eligibility requirement was clear and unambiguous, the hearing officer determined that claimant was ineligible to receive benefits.
Claimant appealed the hearing officer's decision, and the Panel affirmed. The Panel concluded that the evidence clearly established claimant did not seek work as required under the statutory scheme. The Panel also concluded that claimant had failed to demonstrate she should be exempt from the work search eligibility requirement because of her circumstances.
On appeal, claimant contends that the Panel erred in affirming the hearing officer's decision that she was ineligible to receive benefits. We disagree.
I.
Claimant first argues that she actually satisfied the work-seeking requirement because she sought work from employer. However, claimant failed to raise this argument to the Panel. Instead, claimant argued that she should be excused from the work-seeking requirement because of the potential consequences to her employment status and her workers' compensation claim. Indeed, in her brief to the Panel, claimant essentially admitted that she did not comply with the work-seeking requirement and that she "effectively elected the lesser of two evils" when she did not actively seek work with another employer.
Under these circumstances, we decline to consider this argument. See Hart v. Indus. Claim Appeals Office, 914 P.2d 406 (Colo. App. 1995) (appellate court declined to consider issue because claimant failed to raise it before the Panel and, therefore, failed to preserve it for review).
II.
Claimant also contends that the hearing officer and the Panel should have excused her failure to satisfy the work-seeking requirement because application of that requirement is inequitable under the circumstances. We perceive no error.
An unemployed individual is eligible to receive benefits with respect to any week only if the Division finds that the individual "is actively seeking work." See § 8-73-107(1)(g)(I). Department of Labor & Employment Regulation 2.8.4 provides that a claimant must make reasonable and diligent efforts acti
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