Opinion
No. 73-269
Decided January 15, 1974.
Industrial Commission denied unemployment compensation benefits to claimant and further found that she was ineligible for benefits because she had restricted her availability for employment. Claimant sought review.
Affirmed in Part, Set Aside in Part.
1. UNEMPLOYMENT COMPENSATION — Findings — Claimant — "Basically" Responsible — Termination — Refused — 50% Award Justified. It was not necessary that referee find expressly that claimant was "wholly" responsible for situation leading to her termination, and where referee found claimant "basically" responsible for her own termination, and findings, as a whole, showed that referee was convinced claimant was more than a "contribution" to the problem, the findings were sufficient to justify refusal to apply 50% award provision of statute.
2. Ineligibility Provisions — Pertinent — After Disqualification Period — Determination — Unavailability Premature. The ineligibility provisions of statute would not become pertinent until unemployment compensation claimant's period of disqualification relative to a "no award" decision had expired, and claimant's availability for work at that time would then ripen into an issue to be decided; accordingly, where referee determined claimant to be ineligible for benefits because, at the time her employment was terminated, she had refused work on another shift, such determination of ineligibility was premature and must be set aside.
Review of Order from the Industrial Commission of the State of Colorado
William E. Benjamin for petitioner.
John P. Moore, Attorney General, John E. Bush, Deputy, Robert L. Harris, Assistant, for respondents.
Claimant appeals from a "no award" decision of the Industrial Commission rendered under the optional award authority contained in 1965 Perm. Supp., C.R.S. 1963, 82-4-8(7) and Regulation No. 39 of the Commission, and from the Commission's finding that she had so restricted her availability for employment as to make her ineligible for benefits according to 1965 Perm. Supp., C.R.S. 1963, 82-4-7(4).
The events leading to claimant's discharge from her employment at respondent hospital involved prolonged disagreements between the claimant and a co-worker. The dispute resulted in their inability to work together. The disagreements then spread to other employees on the same shift, and resulted in serious disruption in the operation of their department. The claimant and the other employee were finally confronted by the management and told that the situation would have to be resolved; otherwise, one or both of them would be discharged. After this conference, the situation in the department worsened, and the management determined that the claimant was the instigator of the trouble. She was informed of this determination and, as an alternative to her being discharged, was offered employment on another shift. She refused this change in working hours due to family complications and was discharged from her employment.
I.
Claimant argues that the findings of fact by the referee require the application of the provisions of the statute for a 50% award, 1965 Perm. Supp., C.R.S. 1963, 82-4-8(5)(c). That section permits a 50% award "under conditions indicating that the claimant contributed to, but was not wholly responsible for, incompatibility with a supervisor or fellow employees." The referee found that "the claimant was basically responsible for her own termination . . . ." Claimant argues that in finding her only "basically" responsible, the referee implied that claimant was not "wholly" responsible and therefore the 50% award was in order.
[1] Reading the findings as a whole, it is clear that the referee was convinced that claimant had instigated the hostilities and that her conduct was more than a "contribution" to the problem. It was not not necessary for the referee to find expressly that claimant was "wholly" responsible for that situation. The findings by the referee were supported by evidence in the record and were sufficient to justify the refusal to apply the 50% award provision. Where the evidence is conflicting and susceptible to conflicting inferences, the Commission's decision will not be disturbed. Curtis v. Industrial Commission, 167 Colo. 462, 447 P.2d 1012.
II.
The referee also found that claimant, by refusing to work a different shift, was not available for full-time work, and then concluded that under 1965 Perm. Supp., C.R.S. 1963, 82-4-7(4), "the claimant is disallowed (sic) as of date of filing by reason of limited availability." Claimant argues that the evidence in the record was insufficient to support this finding and conclusion.
[2] We need not reach the merits of this issue because the referee's determination under C.R.S. 1963, 82-4-7, was premature. While the refusal to work a different shift (in the absence of a violation of seniority rights) or any other refusal of suitable work, may well be independent grounds for a "no award" decision under 1965 Perm. Supp., C.R.S. 1963, 82-4-8(6)(b)(xx) and (c)(i), the "eligibility" provisions of section 82-4-7 including limited availability, only come into play with respect to conditions existing after the filing of the claim. The "no award" decision rendered in this case required that claimant be "disqualified" from receiving benefits for a period of 13 to 25 weeks under 1971 Perm. Supp., C.R.S. 1963, 82-4-8(2)(b)(i), and a 13-week disqualification was imposed. Thus, the provisions of C.R.S. 1963, 82-4-7, would not become pertinent unless the claimant should apply for for benefits after this period of disqualification had expired. The question of claimant's restrictions on her availability for work at that time would then ripen as an issue to be determined under the principles announced in Couchman v. Industrial Commission, 33 Colo. App. 116, 515 P.2d 636.
The order of "no award" is affirmed, but the Commission's findings and conclusions as to unavailability are set aside.
Order affirmed in part and set aside in part.
JUDGE COYTE and JUDGE ENOCH concur.