Industrial Commission of the State of Colorado (Ex-officio
Unemployment Compensation Commission of Colorado),
Plaintiff in Error,
v.
Carlee J. Bennett, Defendant in Error.
No. 23062.
166 Colo. 101, 441 P.2d 648
Supreme Court of Colorado,
In Department.
June 10, 1968.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen.,
Robert L. Harris, Asst. Atty. Gen., Denver, for plaintiff in error.
Leon R. Hetherington, James J. Johnston, Denver, for defendant in
error.
HODGES, Justice.
The parties will be referred to herein as the Commission and the
claimant.
Unemployment compensation was paid to the claimant during periods
she was in attendance at Denver University as fulltime day student.
On the claim form and on the periodic interview questionnaires, she
had answered 'no' to the question 'Are you attending school or a
training course?'
When the claimant's student status was discovered by the
Department of Employment, compensation for the periods involved was
disallowed because the hours of schooling conflicted with the
claimant's availability for employment. She was also requested to
reimburse the department in the sum of the overpayment, which
amounted to $960.
Claimant appealed this administrative decision to the Commission
claiming that her availability for employment was not affected
because she would have quit school immediately upon being offered a
job. A hearing was held. Claimant, who was represented by counsel,
testified and presented evidence in support of her position. As a
result of this hearing, a finding was made that the claimant
knowingly withheld material facts affecting her eligibility to
receive unemployment compensation from June 23, 1965 until January
13, 1966; that her availability for employment, one of the
conditions of eligibility, was restricted by her university
attendance; and that, therefore, she was overpaid $960. The
Commission adopted these findings and reaffirmed them when it
considered the claimant's petition for review.
The claimant thereupon filed a complaint in the trial court for
review and reversal of the Commission's findings and order. The
trial court reversed the Commission and ordered that the
disallowance of compensation during the pertinent period and the
consequent order for reimbursement be vacated. The trial court found
in substance that the evidence before the Commission was
insufficient to support its findings and order. From the trial
court's findings and judgment, the Commission prosecutes this writ
of error.
The sole issues presented here are the propriety of the
Commission's findings and order and whether these findings and order
are supported by sufficient evidence.
In explanation of why she answered 'no' to the questions relating
to school attendance on the various forms submitted in connection
with her claim for unemployment compensation, she testified that
attending school, in her view, was not a material circumstance,
since she would have quit school promptly in the event a job was
offered to her. It was conceded by her, however, that during a
previous unemployment period when she was attending night classes,
she had answered 'yes' to the same question on the required forms;
that she knew school attendance might affect eligibility; and that a
'yes' answer generated further inquiries by the Department of
Employment. Claimant also testified that during the pertinent
periods, she made numerous job inquiries in an effort to secure
employment.
The trial court found that the testimony of the claimant, that
she would quit school if she secured employment, was uncontradicted
and is therefore sufficient to rebut the findings of the Commission.
The trial court in its findings also, in effect, reasoned that since
there was no statute or regulation concerning attendance at school
as being a proper subject of inquiry by the Department of Employment
in determining eligibility, school attendance was therefore not a
material fact. The trial court then deduced that the Commission
wrongfully found that the claimant knowingly withheld or falsely
stated a Material fact affecting her eligibility to receive
unemployment compensation. The trial court ultimately concluded that
the evidence was insufficient to support the Commission's findings
and order. We do not agree with the trial court's reasoning or its
ultimate finding. Our examination of this record reveals ample and
credible evidence and documents to support the Commission's findings
and we further hold that its findings and order are proper as a
matter of law.
The claimant's statements and her sworn testimony that her
availability for work was not affected by her school attendance
because she would have promptly quit school if offered employment,
are clearly self-serving declarations of what may have been her
intention during the periods involved. The fact that these
statements and the testimony were not specifically contradicted does
not preclude the fact finder from not accepting them at full face
value. The record includes other evidence and documents from which
strong inferences could be drawn that the claimant's school
attendance would affect and restrict her availability for
employment. If conflicting inferences exist, it is for the
Commission to draw the controlling inference. Further, the
credibility of the witnesses and the weight of the evidence lie
exclusively within the province of the Commission.
Neff v. Industrial Comm., 24 Wis.2d 207, 128 N.W.2d 465
involves a fact situation which in certain respects is similar to
the case at bar. In that case, the Commission's findings on the
question of availability for work of a full time student is
involved, together with his testimony of willingness to quit school
on an offer of employment. In upholding the Commission's ruling
denying compensation, the court stated with regard to the claimant's
testimony:
'His testimony as to his willingness to
quit school is a self-serving declaration of future
intention. Under the circumstances the testimony was clearly
admissible but because it was self-serving and a declaration
of future intention the commission was not bound to accept
his testimony as a verity but was obligated to test his
credibility and weigh his evidence together with other
evidence to determine the fact. His testimony was an
assertion of his mental state as to future acts. No
testimony was available to refute or confirm it. From the
testimony quoted the commission could determine that his
demeanor and his response to pertinent and compelling
questions was evasive and equivocal.'
The above language has particularly strong application to the
testimony of claimant here, whose claims of an intention to quit
school to work, are retrospective rather than prospective.
It is axiomatic that findings of the commission as to the facts,
if supported by substantial evidence shall be conclusive. A
reviewing court may not interfere with an administrative judgment
merely because there is a ground for difference of opinion. Nor may
a reviewing court substitute its judgment for that of the
administrative body when the findings of fact are properly supported
by the evidence. Morrison Road Bar, Inc. v. Industrial Commission,
138 Colo. 16, 328 P.2d 1076; Burak v. American Smelting and
Refining Company, 134 Colo. 255, 302 P.2d 182; Bryant v.
Hayden Coal Co., 111 Colo. 93, 137 P.2d 417.
Availability for work' and 'actively seeking work' are two of the
eligibility conditions required to entitle a person to unemployment
compensation. See C.R.S. 1963, 82--4--7. Both or either of
these conditions could be found to be lacking or restricted by
full-time attendance at school, and such a finding would be a lawful
basis for disallowing compensation. Inquiry therefore regarding any
circumstance, including school attendance, which has a bearing upon
eligibility conditions is not only proper but is required in the
efficient administration of the Colorado Employment Security Act.
The answers and representations made by the claimant as to school
attendance are representations of material facts. It therefore
follows that a false statement in answer to such inquiry is clearly
encompassed within C.R.S. 1963, 82--11--1(1)(b) as follows:
'Any person who makes a false
representation, knowing it to be false, or who fails to
disclose a material fact, with intent to obtain or increase
any benefit for himself or any other person shall be
ineligible to receive benefits for a period of fifty-two
consecutive weeks beginning with the first week for which a
fraudulent payment has been made. The claimant shall repay
to the department any overpayments which have resulted due
to his act of false representation or his failure to
disclose material information and until such amounts are
repaid the claimant shall be entitled to no benefits under
this chapter. The penalty imposed by this paragraph (b)
shall be in addition to and not in lieu of any other
penalty, civil or criminal, provided in this chapter.'
The judgment of the trial court is reversed and the cause is
remanded for entry of a judgment affirming the findings and order of
the Commission.
Moore, C.J., and Kelley, J., concur.
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