Summary
stating that "the facts in a given case [must] be examined to ascertain if they bring the matter within any statutory category"
Summary of this case from M & A Acquisition Corp. v. Indus. Claim Appeals Office of StateOpinion
No. 77-374
Decided December 1, 1977.
From award of unemployment benefits to claimant who had worked for employer as a legal secretary, employer sought review.
Order Affirmed
1. UNEMPLOYMENT COMPENSATION — Claimant — Held Two Jobs — After Leaving — Respondent Employer — Not Unemployed — More Than One Week — Not Entitled — Benefits — Amendment — Not Retroactively Applied. Although after unemployment compensation claimant left her position with respondent employer on March 12, 1976, she held two other jobs before applying for unemployment benefits in November 1976, nevertheless, during this period she did not remain unemployed for more than one week at a time and thus was not entitled to any benefits until after amendment to the Employment Security Act became effective on October 1, 1976; accordingly, the application of that amendment to her claim did not constitute a retroactive application of the amendment.
2. Application — Optional Award Provisions — Necessarily Determined — Better Job Provision — Inapplicable — Express Negation — Not Required. In unemployment compensation proceeding, the Industrial Commission, by applying the optional award provisions of the Employment Security Act, necessarily considered and determined that the application of the better job provision by the deputy director had been incorrect, and the evidence supports that determination; hence, the Commission did not need expressly to negate the applicability of that better job provision in its order.
Review of Order from the Industrial Commission of the State of Colorado
Dailey, Goodwin O'Leary, P.C., Clive A. O'Leary, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado.
Petitioner, Dailey, Goodwin and O'Leary, P.C., seeks review of an Industrial Commission order awarding claimant, Brenda S. Howell, reduced unemployment benefits pursuant to § 8-73-108(6)(b)(XIII), C.R.S. 1973 (1976 Cum. Supp.). We affirm.
In November 1974, claimant became employed as a legal secretary for an attorney engaged in private practice. In May 1975, claimant's, employer decided to incorporate with two other attorneys, under the name of Dailey, Goodwin O'Leary, P.C. Claimant was retained by petitioner as a legal secretary-receptionist. A personality conflict developed between claimant and one of the other attorneys. In February 1976, the attorney she had previously worked for discussed the situation with her, information her she could remain in petitioner's employ, but is she desired to leave, he knew a friend who needed a legal secretary. The record indicates she accepted this new position on February 27, 1976, terminating her employment with petitioner March 12, 1976, and began her new job on March 15, 1976. Claimant's new job was closer to her home in Aurora and paid better. Because her husband was given a job promotion in Nederland, Colorado, claimant quit the second job on April 30, 1976, moved to Boulder, and there accepted employment in a similar capacity from May 2, 1976, to October 28, 1976. She quit this third position when she and her husband moved to Idaho Springs to be closer to his work. She was unable to find employment there.
Claimant applied for unemployment benefits and was granted a full award by a deputy director of the division under § 8-73-108(4)(f), C.R.S. 1973 (quitting to accept a better job). Petitioner agreed this was the applicable section, but argued claimant was not entitled to an award thereunder. Petitioner appealed, and on January 18, 1977, a hearing was held before a referee. The referee reversed the deputy director, ordering a reduced award pursuant to § 8-73-108(6)(b)(XIII), C.R.S. 1973 (1976 Cum. Supp.) (responsibility for separation shared by worker and employer). Subsequently, the Commission adopted the referee's decision and affirmed its award.
I.
Petitioner contends that claimant's cause of action accrued prior to October 1, 1976, and that therefore section 8-73-108(6)(b)(XIII), C.R.S. 1973 (1976 Cum. Supp.) which became effective October 1, 1976, was retroactively applied.
Petitioner argues that the operative events underlying claimant's cause of action occurred at the time she first had the right to submit a claim for unemployment benefits. Petitioner insists this occurred, at the latest, in May 1976, when claimant first could have asserted unemployment claims against petitioner if she had then remained unemployed for a time period greater than one week. See § 8-73-107(1)(d), C.R.S. 1973. We find this contention specious.
"A statute is not rendered retroactive merely because the facts upon which it operated occurred at a time antecedent to its application . . . . If the right of a claimant had not yet accrued . . . and the limitations of the employer had not yet been established, application of the amended act does not constitute giving the amended act retroactive effect. . . . The procedure to be utilized in determining when the cause of action accrues is to ascertain when the litigation could first have been successfully maintained." Tucker v. Claimants in the Death of Gonzales, 37 Colo. 252, 546 P.2d 1271.
[1] Here, claimant was not entitled to claim benefits until she had been unemployed for a time period greater than one week. Section 8-73-107(1)(d), C.R.S. 1973. Since she found the third job in less than a week, she was not at that time entitled to unemployment benefits against petitioner. It was not until November 1976 that she was first entitled to claim benefits. Consequently, although most of the events supportive of her claim occurred prior to the effective date of the statute, her right to claim benefits did not accrue until November, and thus the statute was not retroactively applied.
II.
Petitioner also contends, on the basis of our holding in Mattison v. Industrial Commission, 33 Colo. App. 203, 516 P.2d 1143, that the order of the Commission is insufficient as a matter of law because prior to determining claimant was entitled to an award under the optional award section, § 8-73-108(6)(b)(XIII), C.R.S. 1973 (1976 Cum. Supp.), there should have been a finding that § 8-73-108(4)(f), C.R.S. 1973, was inapplicable.
The Mattison decision does not support petitioner's contention. Lack of findings as to the inapplicability of a section was not an issue in Mattison, and was not addressed by this court. Mattison requires that the facts in a given case be examined to ascertain if they bring the matter within any statutory category, and that when two or more provisions might apply to a given factual situation, the Commission has discretion to determine what section will be applied. We further held that where the facts did not fall within any of the statutory categories, the Commission's order must be based on the optional award section.
[2] Here, when the Commission applied the optional award section of the Act, it necessarily considered and determined that the application of the better job provision by the deputy director was incorrect. The evidence clearly supports the action of the Commission, and it need not expressly negate the applicability of another section.
Order affirmed.
JUDGE BERMAN and JUDGE STERNBERG concur.