Tech. v. ICAO, 2020 COA 29

Keysight Technologies was spun off from Agilent in 2014, wholly owned by Agilent, acquiring 75% of Agilent’s Colorado employees and about half its infrastructure; Keysight became a Colorado statutory employer and received a Division-assigned unemployment premium rate in October 2014.
In 2018 Keysight requested that the Division of Unemployment Insurance transfer Agilent’s unemployment “experience” (claims history) to Keysight and revise Keysight’s premium rate effective as of the transfer.
The Division denied the request. The hearing officer found § 8-76-104(3) and (1)(a) inapplicable but concluded § 8-76-104(2)(b) required transfer and rate recalculation.
The Industrial Claim Appeals Office (Panel) affirmed non-applicability of subsections (1) and (3) but reversed the hearing officer on subsection (2)(b), holding (2)(b) applies only when the successor/transferee was already an existing statutory employer at the time of transfer.
The Division also argued, and the Court of Appeals agreed, that Keysight’s request was untimely under Division Regulation 11.1.4 (written redetermination required within 20 calendar days of rate notice); Keysight waited more than three years to seek the change.
The Court of Appeals affirmed the Panel: (1) § 8-76-104(2)(b) does not require transferring Agilent’s experience to Keysight because Keysight was not a pre-existing statutory employer, and (2) Keysight’s request was untimely, providing an independent basis to deny relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 8-76-104(2)(b) required transfer of Agilent’s experience to Keysight (a spin-off that did not exist as a statutory employer before the transfer).	Keysight: § 8-76-104(2)(b) does not require the successor to have been a pre-existing statutory employer; subsection lacks the explicit "was an employer prior" language found in (2)(a).	Division: (2)(b)’s requirement to "recalculate" the successor’s rate presupposes a pre-existing Division-calculated rate; (2)(b) applies only where the transferee was already a statutory employer.	Court: Affirmed Panel. (2)(b) contemplates a successor with a pre-existing premium rate; Keysight did not qualify.
Whether Keysight timely sought redetermination of its premium rate under Division regulations.	Keysight: Argued Division waived any timeliness defense by not raising it earlier.	Division: Reg. 11.1.4 required a written redetermination request within 20 calendar days of the rate notice; Keysight waited >3 years.	Court: Affirmed Panel. Keysight’s request was untimely; Division may defend order on this independent ground.

TRW Inc. v. Andrews, 534 U.S. 19 (2001) (cardinal rule against rendering statutory words superfluous).
Jenkins v. Panama Canal Ry. Co., 208 P.3d 238 (Colo. 2009) (statutory drafting errors or policy issues are for the legislature to remedy).
Nelson v. Industrial Claim Appeals Office, 219 P.3d 416 (Colo. App. 2009) (effect of statute is a legislative policy matter).
Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo. 1991) (appellee may defend the judgment on any ground supported by the record).
Westfall v. Town of Hugo, 851 P.2d 299 (Colo. App. 1993) (courts may take judicial notice of state administrative regulations).
Stevenson v. Industrial Commission, 705 P.2d 1020 (Colo. App. 1985) (affirmance may rest on an alternative statutory basis).