Opinion
June 4, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 158
Carl W. Gellenthien, Pueblo, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado (Ex-officio Unemployment Compensation Commission of Colorado).
SILVERSTEIN, Chief Judge.
Employer, Seavy and Jensen, a partnership, seeks review of a final order of the Industrial Commission granting a full award of unemployment benefits to claimant. We affirm.
Claimant, Rosemary Trussell, sought unemployment compensation following her discharge for unsatisfactory work performance. Her claim was first heard by a deputy of the Division of Employment who found that both the employer and claimant were responsible for the separation and granted 50 percent of full award under the optional award authority of 1965 Perm.Supp., C.R.S.1963, 82--4--8(7) and Regulation No. 39D. The employer appealed, and, after a hearing, the referee concluded that the claimant was discharged 'because she was either mentally unable to perform the work or unqualified to perofrm the work as a result of inadequate professional skills' and modified the deputy's decision by granting a full award under 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(k). The Industrial Commission affirmed and adopted the decision of the referee.
Citing 1969 Perm.Supp., C.R.S.1963, 82--5--11, and Beatty v. Automatic Catering, Inc., 165 Colo. 219, 438 P.2d 234, employer contends that the record lacks substantial evidence to support a finding that claimant was unable or unqualified to perform the work and that, therefore, the order should be set aside or ordered changed to conform to the evidence. Substantial evidence is evidence sufficient to warrant a reasonable belief in the existence of facts which would support the findings made. Coakley v. Hayes, 121 Colo. 303, 215 P.2d 901. Here there is substantial evidence in the record to support the Commission's findings and award.
Claimant worked as a stenographer, receptionist, and bookkeeper in the law office of petitioner from January 1971 to January 15, 1973. Representatives of employer testified that her typewritten work frequently contained misspelled words and visible erasures and that she made arithmetic errors in her bookkeeping.
Claimant testified that one of the attorneys seemed to 'look for errors and delight in finding them.' That attorney testified he was a 'stickler for neatness' who believes work should be retyped if it contains a visible erasure. He admitted that some of claimant's work was acceptable but testified that much of it was not acceptable to his standards. Another attorney testified concerning claimant's errors, but added, 'She tried her best, I'm sure.'
The determination of the credibility of the witnesses and the weight to be given to their testimony is within the power of the Industrial Commission. McGinn v. Industrial Commission, 31 Colo.App. 6, 496 P.2d 1080. When administrative findings of fact are supported by the evidence, a reviewing court may not substitute its judgment for that of the administrative body. Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648.
Employer also argues that the only inference permissible from the evidence was that claimant performed careless and shoddy work, entitling her, by virtue of 1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(xvii), to no award.
However, the evidence here is conflicting and susceptible to conflicting inferences. Thus, since the Commission's determination that claimant was incapable of doing the work is a plausible inference from the evidence, it will be upheld. McGinn v. Industrial Commission, Supra.
Finally, we find no merit in employer's contention that the referee's findings were based on incompetent hearsay. Similarly, the record does not support employer's allegation of partiality or prejudice on the part of the referee.
Order affirmed.
COYTE and ENOCH, JJ., concur.