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COLORADO COURT OF APPEALS Court of Appeals No. 11CA1982 Industrial Claim Appeals Office of the State of Colorado DD No. 16415-2011 Charles M. Meyers, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado and Echosphere, LLC, Respondents. ORDER VACATED AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE RUSSEL Furman, J., concurs Webb, J., dissents NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced March 29, 2012 Charles M. Meyers, Pro Se John W. Suthers, Attorney General, Tricia A. Leakey, Assistant Attorney General, Denver, Colorado for Respondent Industrial Claim Appeals Office No Appearance for Respondent Echosphere, LLC Charles M. Meyers appeals from an order issued by the Industrial Claim Appeals Office (panel). Exercising jurisdiction under sections 8-74-107 and 13-4-102(2)(a), C.R.S. 2011, we vacate the order and remand for further proceedings. I. Factual and Procedural Background Meyers worked as a customer resolution specialist for Echosphere, LLC. While at work, he was subjected to a random drug test. He tested positive for marijuana and consequently was fired from his job. A hearing officer ruled that Meyers could not receive unemployment benefits because he was at fault for the separation. Meyers appealed to the panel, challenging the hearing officer's decision. He argued that, because he had a state-issued medical marijuana registration card, his use of marijuana was both lawful and prescribed. Relying in part on Beinor v. Industrial Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011), the panel disagreed. It concluded that Meyers was statutorily disqualified from receiving benefits. See § 8-73-108(5)(e)(IX), C.R.S. 2011 (job separation due to the “presence in an individual's system, during working hours, of not medically prescribed controlled substances”). Meyers now turns to this court. Our review is limited: 1, We must accept the hearing officer's factual findings if they are supported by substantial evidence in the record. See § 8- 74-107(4), C.R.S. 2011; Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo. App. 1996). 2. We must disregard evidence or arguments that were not presented at the hearing. See § 8-74-107(1), C.R.S. 2011; Magin v. Div. of Emp’t, 899 P.2d 369, 371 (Colo. App. 1995). 3. We similarly must disregard any argument that was not presented to the panel. See QFD Accessories, Inc. v. Indus. Claim Appeals Office, 873 P.2d 32, 33-34 (Colo. App. 1993). Il. Discussion Meyers challenges the panel's order on several grounds. We reject most of his arguments but conclude that, as to one issue, further findings are necessary. A. Arguments Rejected 1. Protected lawful activity. Meyers asserts that he had the legal right to use marijuana. And he asserts, relying on section 24- 34-402.5, C.R.S. 2011, that he was improperly fired for engaging in this lawful activity, at home, during non-working hours. 2 Assuming, without deciding, that Meyers’s assertions are true, we conclude that he is not entitled to relief in this unemployment compensation case. Meyers's sole remedy is to bring a separate civil action for damages. See § 24-34-402.5(2)la), C.R.S. 2011. 2. Medically prescribed. Meyers argues that the panel erred in concluding that marijuana is “not medically prescribed,” within the meaning of section 8-73-108(5)(e)(X.5). We reject his arguments for the reasons stated in Beinor, 262 P.3d at 973-75.! 3. Medical marijuana amendment. We similarly conclude, for the reasons stated in Beinor, 262 P.3d at 975-77, that the medical marijuana amendment invalidates neither employer's drug policy nor section 8-73-108(5)(e)(IX.5). 1 Meyers suggests that, to avoid an “ex post facto” violation, Beinor should apply only prospectively. We disagree. Ex post facto analysis applies to legislative enactments, not to judicial decisions. Rogers v. Tennessee, 532 U.S. 451, 456 (2001). And we perceive no due process impediment to a retrospective application of Beinor, for two reasons. First, it is far from clear that Beinor established a new rule of law. {It did not overrule prior precedent, and its result is fairly foreshadowed by the pertinent constitutional and statutory text.) Second, even if Beinor established a new rule of law, its retrospective application would further the rule's purpose and would not be unjust. See Pollock v. Highlands Ranch Cmty. Ass'n, 140 P.3d 351, 355 (Colo. App. 2006) (stating the test for determining whether a judicial decision should be given only prospective effect}. 4. Federal law. We decline to address Meyers’s arguments on the construction and effect of federal law because these arguments were not presented to the hearing officer. See § 8-74-107(1); Magin, 899 P.2d at 371. B. Further Findings Necessary Meyers contends that he was not at fault for the termination because he could not have known that he could be fired for using marijuana at home. We conclude that further findings are necessary. By statute, an individual may receive unemployment benefits if he was “unemployed through no fault of his own.” § 8-73- 108(1){a), C.R.S. 2011. Thus, a claimant may receive benefits, even under circumstances that would support disqualification, if the facts show that he was not at fault for his separation from employment. See Velo v. Emp't Solutions Pers., 988 P.2d 1139, 1142-43 (Colo. App. 1998) (after affirming applicability of disqualifying provisions, remanding case for a new order based on resolution of fault issues). In this context, “fault” does not necessarily mean culpability. Id. at 1142. Rather, a finding of fault requires only “a 4 volitional act or the exercise of some control or choice in the circumstances leading to the separation from employment such that the claimant can be said to be responsible for the separation.” Id.; Cole v. Indus. Claim Appeals Office, 964 P.2d 617, 618 (Colo. App. 1998). Under these standards, Meyers could not have been at fault if he was never informed that he could be fired for reporting to work with any detectable amount of THC in his system. See Nielsen v. AMI Indus., Inc., 759 P.2d 834, 835 (Colo. App. 1988) (if employer's policy was never communicated to the claimant, then he was not at fault for discharge because he could not have been aware of his choice on how to proceed, and thus could not have acted volitionally); Zelingers v. Indus. Comm'n, 679 P.2d 608, 609-10 (Colo. App. 1984) (claimant not at fault for discharge when employer's failure to inform her of the consequences of her actions deprived her of the opportunity to act volitionally in the circumstances resulting in her discharge). Here, the hearing officer found that Meyers was subject to the 2009 version of Echosphere’s drug policy. The officer also found that Meyers was aware of this version of the policy. (These findings 5 are supported by substantial evidence and thus are binding on appeal.) The 2009 policy states, in pertinent part, that “[nlo employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee's system.” However, the policy apparently does not identify or define “prohibited” drugs. (We cannot review the policy ourselves because the parties did not make it a part of the record on appeal.) The hearing officer concluded that the policy satisfies section 8-73-108(5)(e)(IX.5), even though it does not identify marijuana as a prohibited drug. Although correct, that conclusion does not resolve whether Meyers knew that he could be fired for having THC in his system. We therefore conclude that the matter must be remanded for findings and conclusions on whether Meyers was at fault for the separation from employment because he knew, or reasonably should have known, that the policy included marijuana. Accordingly, the panel's order is vacated, and the case is remanded for findings and conclusions on that issue only. JUDGE FURMAN concurs. JUDGE WEBB dissents. JUDGE WEBB dissenting, For the reasons set forth in the dissent in Beinor v. Industrial Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011), I would reverse the panel's order. Therefore, I respectfully dissent.

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