Summary
stating subsection 4(j) provides that a claimant shall receive full benefits "if the separation occurred because of the [claimant]'s ‘being physically or mentally unable to perform the work,’ " without addressing the educational attainment and professional skills clause
Summary of this case from Mesa Cnty. Pub. Lib. v. Indus. Claim Appeals OfficeOpinion
No. 80CA1274
Decided May 14, 1981.
Review of Order from the Industrial Commission of the State of Colorado
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General.
Deanna E. Hickman, Assistant Attorney General, for petitioner.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General,
Robert S. Hyatt, Assistant Attorney General, for respondent.
John R. Naylor, Henry J. Geisel, for respondent.
Division I.
Petitioner, Colorado State Judicial Department (Department), seeks reversal of a final order of the Industrial Commission which awarded respondent Joseph V. Medina full unemployment compensation benefits following his discharge by the Department. We affirm.
The facts are undisputed. Medina was discharged because of excessive absenteeism. The Department admitted that all of Medina's absences were the result of illness. The major symptom of that illness was pain stemming from a work-related back injury.
The referee determined that the discharge was because of absenteeism and disqualified Medina from benefits for a period of twelve weeks, pursuant to § 8-73-108(5)(x), C.R.S. 1973 (1980 Cum. Supp.), which provides for reduced benefits if the separation is "for . . . excessive . . . absenteeism . . . unless such failure is attributable to factors listed in paragraph (j) of subsection (4) of this section." Section 8-73-108(4)(j), C.R.S. 1973 (1980 Cum. Supp.), provides that an individual separated from a job shall receive full benefits if the separation occurred because of the employee's "being physically or mentally unable to perform the work . . . ."
On review, the Industrial Commission found that "the controlling factor in this case is the physical inability of the claimant to perform work." It therefore awarded full benefits. Petitioner contends that being "physically unable" does not include an inability to work which results from an "illness" such as Medina's. We do not agree.
Physical inability to work has been defined as the inability to perform the labor, or equally remunerative work, that an injured person was engaged in at the time of his injury. Keith v. Chicago, B. Q. R.R., 82 Neb. 612, 116 N.W. 957 (1908); see Hagman v. Equitable Life Assurance Society, 214 Ky. 56, 282 S.W. 1112 (1926). Here, the evidence is undisputed that, because of Medina's condition, there were days when he could not get out of bed, or could not remain in either a standing or sitting position for sustained periods. Hence, at such times he was physically unable to perform the work for which he was employed, and the section relied on by the Commission is applicable.
When two sections of the Unemployment Compensation Act § 8-73-101, et seq., C.R.S. 1973, are pertinent, the Commission has wide latitude in determining which section it will apply. Mattison v. Industrial Commission, 33 Colo. App. 203, 516 P.2d 1143 (1973). And where as here, its decision is supported by the evidence, that decision will not be disturbed. Morrison Road Bar, Inc. v. Industrial Commission, 138 Colo. 16, 328 P.2d 1076 (1958).
Order affirmed.
CHIEF JUDGE ENOCH and JUDGE PIERCE concur.