dissenting.
Based upon my review of the record, I conclude that the referee applied an incorrect legal standard and improperly confused the regulatory and statutory grounds for granting a claimant a waiver of an overpayment of unemployment compensation benefits. Accordingly, because I would set aside the final order of the Industrial Claim Appeals Panel affirming the denial of a waiver, I dissent.
As the majority notes, claimant, M. Keith Hart, asserts that respondents, the Panel and the Division of Employment and Training, improperly applied Department of Labor and Employment Regulation 15.1, 7 Code Colo.Reg. 1101-2 (1994), in considering his request for waiving the recovery of an overpayment of unemployment compensation benefits he had received. The gist of claimant’s argument is that Regulation 15.1 permits the Division to allow a waiver in very limited circumstances, in contrast to § 8-81-101(4)(a)(I), C.R.S. (1986 Repl.Vol. 3B), which permits waiver on the broader grounds of “inequitability,” and that respondents considered only Regulation 15.1.
*410Regulation 15.1, by its terms, only describes conditions for waiving recovery of an overpayment on grounds that it is non-collectible or administratively impracticable. Although this regulation tracks the language of § 8 — 81—101(4)(b), C.R.S. (1986 Repl.Vol. 3B), the regulation itself erroneously cites the statutory reference as § 8-81-101(4)(a)(II), C.R.S. (1994 Cum.Supp.), a statutory prohibition on inequitability findings when a claimant has made a false representation or willfully failed to disclose a material fact.
Although § 8 — 81—101(4)(a)(I) permits waiver of recovery of an overpayment on grounds of inequitability, there is no regulation which implements it. Rather, that statutory provision has been broadly interpreted by a series of court decisions. See Munoz-Navarette v. Industrial Claim Appeals Office, 833 P.2d 827 (Colo.App.1992); Kalkbrenner v. Industrial Claim Appeals Office, 801 P.2d 545 (Colo.App.1990); Hesson v. Industrial Commission, 740 P.2d 526 (Colo.App.1987); Mugrauer v. Industrial Commission, 709 P.2d 47 (Colo.App.1985). These decisions have permitted, inter alia, consideration of whether the claimant has relinquished a valuable right, changed his or her position for the worse, used unemployment benefits for daily living expenses, limited his or her expenses while receiving unemployment benefits, applied for or foregone public assistance, and whether his or her income was below the federal poverty income guidelines.
Although the criteria for granting a waiver in Regulation 15.1 are not exclusive, those that are listed are much more limited: death, total and permanent disability, retirement from the labor force, bankruptcy, and the determination that the cost of collection exceeds the amount of overpayment.
Here, claimant originally sought a waiver of the overpayment on the ground that it would be an undue hardship for him to repay it and that he could not afford to repay it. He cited § 8 — 81—101 (4)(a)(1) in support of his position. Although the referee found that the claimant spent his unemployment benefits on everyday expenses and that he would be “in the hole” approximately $650 given his income and expenses at the time of the hearing, the referee found that “no basis exists upon which the waiver can be granted.” In my view, this conclusion manifests a failure by the referee to recognize that claimant’s spending of the overpaid benefits on everyday expenses would be a proper factor to consider when deciding claimant’s waiver request and suggests that the referee did not follow or was unaware of Kalkbrenner v. ICAO, supra.
Furthermore, from my review of the record, it appears that the referee considered the criteria for waiver set forth in Regulation 15.1 as going to the question of whether claimant was entitled to obtain a waiver on grounds of inequitability. And the referee considered those criteria even though claimant did not assert that he was seeking a waiver in the circumstances for which Regulation 15.1 was intended — that recovery of the overpayment would be administratively impracticable or that the overpayment was noncolleetible. Indeed, during the brief hearing, there was extensive testimony from the Division’s representative concerning the applicability of Regulation 15.1, even though it was irrelevant. Similarly, in his decision, the referee concluded that the claimant had not met the requirements of Regulation 15.1, “nor has he shown that his income is below the poverty level, or that it would be inequitable to require repayment of the overpayment.”
Not only do I share the majority’s view that the referee’s findings may not be a model of clarity, I further conclude that they suffer from the infirmity of erroneous consideration of Regulation 15.1, together with only partial consideration of the factors which go toward a finding of inequitability under the statute. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App.1990) (where findings of fact and conclusions of law are insufficient and inconsistent, it is unclear whether proper legal standard was applied to facts; thus, remand for clarification and further findings is necessary).
It also appears that by not developing evidence regarding all the factors concerning inequitability, the referee did not comply with his regulatory duties to safeguard the rights of the parties and “to fully and fairly *411develop the record.” See Department of Labor and Employment Regulation 11.2.9, 7 Code Colo.Reg. 1101-2 (1994).
Further, inasmuch as the Panel concluded that the referee’s decision reflects consideration of the pertinent factors, the referee’s legal error has carried over into the Panel’s decision. Additionally, contrary to the referee’s finding that repayment would put claimant “in the hole,” the Panel erroneously stated that the referee had found that the claimant had adequate household income and assets to meet his expenses for the current year.
Accordingly, I would remand for a new evidentiary hearing and consideration of claimant’s request based only upon § 8-81-101(4)(a)(I), C.R.S. (1986 Repl.Vol. 3B) and the above cited cases interpreting it.