dissenting.
In my view, the Panel correctly applied Colorado law in concluding “that this limited evidence fails to establish that the working conditions were objectively unsatisfactory based on the factors enumerated in the statute or other comparable considerations.” The Panel ruled that “working between 56 and 63 hours per week does not, per se, constitute ‘unsatisfactory working conditions.’ ” I believe that, as a practical result, the majority’s opinion establishes such a rule and rejects outright the holding of another division of this court in Arias v. Indus. Appeals Office, 850 P.2d 161 (Colo.App.1993). Therefore, I respectfully dissent.
I fear that the majority opinion will be cited for the proposition that a showing of increased working hours by a salaried employee (the record shows those hours were approximately fifty-six per week) constitutes objective proof of a substantial change justifying an award, without proof of the working conditions of similar employees working for similar employers.
In my view, the majority also incorrectly distinguishes Arias, and relies upon law that is not applicable to the unique Colorado statutory language at issue. I also disagree that there is evidence of any objectively unsatisfactory working condition.
Arias dealt directly with the language of § 8-73-108(4)(c) and (d), construing them together, and the division there concluded that “the General Assembly intended that a full award would be granted only if the conditions complained about were less favorable to the employee than those prevailing among similar workers within the locality.” Arias v. Indus. Appeals Office, supra, 850 P.2d at 163. (Emphasis added.)
In reaching its conclusion, the Arias division determined that there was but a single intent in the two provisions, even though § 8 — 73—108(4)(e) requires the hearing officer to consider “the working conditions of workers engaged in the same or similar work for the same and other employers in the locality” and subsection § 8 — 73—108(4)(d) requires the hearing officer to consider whether a change in conditions is still in accordance with “those generally prevailing for workers performing the same or similar work.” The division rejected the employee’s argument that the hearing officer should have compared a particular employee’s working conditions only with the employees of the same employer in determining whether that employee’s conditions had undergone a substantial change. In doing so, the division in Arias interpreted and applied both § 8 — 73—108(4)(c) and (d). Both subsections disallow an award in the absence of proof that the conditions — hazardous, unsatisfactory, or changed — are objectively unique when compared to the community. I disagree that this finding was dictum.
The majority draws a distinction between unsatisfactory working conditions and hazardous working conditions under § 8-73-108(4)(c) because the General Assembly said that “[n]o work shall be considered hazard*214ous if the working conditions surrounding a workers’ employment are the same or substantially the same as the working conditions generally prevailing among workers performing the same or similar work for other employers engaged in the same of similar type of activity.” The majority also notes that § 8 — 73—108(4)(d) contains similar language in its provision that “[n]o change in working conditions shall be considered substantial if it is determined ... that the conditions prevailing after the change are those generally prevailing for other workers performing the same or similar work.”
Because similar language does not preface the unsatisfactory working conditions component of § 8-73-108(4)(c), the majority concludes that “a number of factors” may be considered in determining whether working conditions are unsatisfactory. In my view, § 8-73-108(4)(c)’s requirement that “the working conditions of workers engaged in the same or similar work for the same and other employers in the locality shall be considered” when the hearing officer determines “whether or not working conditions are unsatisfactory” is the functional equivalent of the other language in the two sections. Section 8-73-108(4)(e). (Emphasis added.) This language communicates a “single intent.” Añas v. Indus. Appeals Office, supra, 850 P.2d at 163. “[Wjhether it be “unsatisfactory conditions” under § 8 — 73—108(4)(c) or the ‘conditions that prevail’ after a change under § 8-73 — 108(4)(d), the comparison, in either case must include employees engaged in the same or similar work in the locality....” Arias v. Indus. Appeals Office, supra, 850 P.2d at 164. (Emphasis added.)
In my view, claimant here failed to establish either objectively unsatisfactory working conditions under § 8-73-108(4)(c), C.R.S. 2003, or an objectively substantial change in working conditions under § 8-73-108(4)(d), C.R.S.2003. Because his claim was denied at the deputy level under § 8-73-108(5)(e), C.R.S.2003, when he proceeded to the de novo hearing before the hearing officer, he had the burden of proof. The majority’s suggestion that the employer had a burden in this case, in my view, is also contrary to the clear language of the statute and cannot rest on the authority of Chris the Crazy Trader, Inc. v. Indus. Claim Appeals Office, 81 P.3d 1148 (Colo.App.2003). That case does not hold that the burden is on the employer to present evidence of similar working conditions. Nothing in the statute suggests that the employer is required to prove similar circumstances either as an affirmative defense or part of its defense.
Although Chris the Crazy Trader holds that the hearing officer is not required to review evidence which has not been produced by the parties, it does not stand for the proposition that the employer must shoulder this burden in the absence of the claimant’s showing a prima facie case.
Relying upon cases from Florida, Minnesota, and Pennsylvania, even though none of those states has the statutory mandate adopted by our General Assembly, the majority concludes that a unilateral increase in the employee’s working hours may constitute unsatisfactory working conditions without proof of similar employees’ circumstances. However, the cases cited by the majority did not deal with statutes like § 8-73-108.
Although the majority finds substantial evidence that the claimant’s working conditions were objectively unsatisfactory under § 8-73-108(4)(c), I can find nothing in the record before us to support that holding. Indeed, the lack of such evidence is the basis for the Panel’s decision to reverse the hearing officer. The majority in effect concedes that there was no objective evidence to support the hearing officer’s decision by concluding that the absence of evidence concerning the working conditions of similarly engaged workers does not preclude an award of benefits.
Here, as the Panel ruled, the evidence is so slim that no prima facie ease was made by claimant. Therefore, this appeal challenges the Panel’s resolution of an ultimate conclusion of fact, and as a reviewing court, we must determine whether there is substantial evidence, or a lack thereof, in the record as a whole to support that conclusion. See Samaritan Inst. v. Prince-Walker, 883 P.2d 3 (Colo.1994).
*215Furthermore, we are authorized to set aside the Panel’s decision if it misinterprets the law under § 8-74-107(6)(d), C.R.S.2003. Here, the Panel’s ultimate conclusion applied the absence of facts to the law. The Panel has considerable expertise in unemployment matters, and its conclusions ought to be given deference.
In any event, I would not place the blame for the lack of evidence upon employer, because I continue to believe that one who seeks an award against an employer bears the burden of proving his claim and must first establish a claim prima facie.
I therefore would affirm the Panel’s order.