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 case, claimant, Kristen Marie
Bellemare, seeks review of an order of the Industrial Claim Appeals
Office (Panel). The Panel affirmed the hearing officer’s decision
disqualifying Bellemare from receiving benefits based on her job
separation from Keystone Achievements. However, the Panel also
remanded Bellemare’s claim for other considerations. Because the
Panel’s order is not a final, appealable order, we dismiss the appeal.
I. Background
¶ 2
Bellemare applied for unemployment benefits after she
resigned from her employment with Keystone to move to Virginia to
be closer to family because she was pregnant. A deputy for the
Division of Unemployment Insurance (Division) issued a decision
determining that Bellemare did not qualify for state unemployment
benefits because she had separated 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 decision. She admitted that
she left Keystone to move to Virginia. But Bellemare stated that the
start date for the job she had set up in Virginia had been delayed by
2
two weeks due to the COVID-19 pandemic and, once she started
working, it was only part time, instead of the full-time job she had
been promised.
¶ 4
After a hearing, the hearing officer affirmed the deputy’s
decision, concluding that Bellemare did not qualify for state
unemployment benefits under section 8-73-108(5)(e)(IV) because
Bellemare left her employment with Keystone to move as a matter of
personal preference. In support of that conclusion, the hearing
officer found that Bellemare resigned 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 officer’s decision to the Panel.
She argued that, if she had been told that she did not qualify for
state unemployment benefits when she first applied, she would
have applied for Pandemic Unemployment Assistance (federal
unemployment benefits) because (1) her Virginia job was put on
hold due to the pandemic; (2) she was told to apply for
unemployment benefits in Colorado since she had not yet worked in
Virginia or established residency there; and (3) even after she began
working, it was on a part-time, hourly basis, instead of the full-time
3
salaried position she had been promised. Bellemare contended that
it was the system’s fault because it was a year before she was told
she did not qualify for state unemployment benefits.
¶ 6
On review, the Panel affirmed the hearing officer’s decision
that Bellemare was not eligible for state unemployment benefits
because she had left her employment 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 should be waived because
it would be inequitable to require Bellemare to repay it;
and
2. whether Bellemare was eligible for federal unemployment
benefits and, if so, whether those benefits could be
backdated to the date she became unemployed.
II. Finality
¶ 7
Because the Panel’s order included a remand, we must
determine whether the order is final and appealable.
¶ 8
We may only review a Panel’s order 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 article 74 of title 8). An order is
final if it “completely determines the rights of the parties without
further action by the tribunal.” Agren, Blando & Assocs., Inc. v.
Oleston, 746 P.2d 68, 69 (Colo. App. 1987).
¶ 9
The Panel’s order did not completely determine Bellemare’s
rights without further action by the Division. After affirming the
hearing officer’s decision that Bellemare was not entitled to state
unemployment benefits, the order included a remand for the
Division to determine whether Bellemare was entitled to (1) a waiver
for the overpaid amount; and (2) federal unemployment benefits.
For that reason, we conclude that the order is not final and
appealable.
¶ 10
The Panel’s label of “Final Order” does not alter our
conclusion. We may disregard the Panel’s designation of finality
when it incorrectly characterizes the order. In this case, the Panel’s
order did not put an end to the controversy because it required
further action by the Division to determine Bellemare’s rights. See
id. (disregarding the Panel’s caption of “Final Order” because the
order — that concluded the claimant had good cause for her late
appeal of the hearing officer’s adverse decision — did not “put an
5
end to the controversy” but “pave[d] the way for further action by
the Panel to determine the merits of [the] claimant’s appeal”).
¶ 11
We recognize that a portion of the order may be considered
final because the Panel affirmed the hearing officer’s decision that
Bellemare was not entitled to state unemployment benefits — a
separate issue from whether she was entitled to a waiver or federal
unemployment benefits. See Velo v. Emp. Sols. Pers., 988 P.2d
1139, 1141 (Colo. App. 1998) (concluding that the Panel’s order was
final because it affirmed the hearing officer’s decision that the
claimant was disqualified from receiving unemployment benefits
based on the circumstances of his job separation, even though the
hearing officer had remanded the claim 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 dispute that portion of the Panel’s
order. In the opening brief, Bellemare admits that she left her
employment with Keystone to move to another state, and she does
not challenge the hearing officer’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 relief that the Panel already granted
to her. In the notice of appeal, Bellemare asks for us to remand her
claim to the Division for them to determine her entitlement to (1) a
waiver of the overpaid amounts; and (2) federal unemployment
benefits. Then, in the opening brief, 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 benefits; (2) it was the system’s
fault; and (3) she should not be found at fault.
¶ 14
Under these circumstances, we conclude the Panel’s order was
not final and appealable. Thus, we lack jurisdiction to consider it.
III. Conclusion
¶ 15
The appeal is dismissed.
JUDGE DAILEY and JUDGE DUNN concur.
