Colorado State Judicial Department, Petitioner,
v.
Industrial Commission of
the State of Colorado (Ex-Officio
Unemployment Compensation Commission of Colorado), and
Joseph V. Medina, employee,
Respondents
No. 80CA1274
630 P.2d 102
Colorado
Court of Appeals,
Div. I.
May 14, 1981
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy
Attorney General, Mary J. Mullarkey, Special Assistant Attorney
General, Deanna E. Hickman, Assistant Attorney General, Denver,
Colorado, Attorneys 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, Denver,
Colorado, Attorneys for Respondent, Industrial Commission of
Colorado.
John R. Naylor, Henry J. Geisel, Pueblo, Colorado, Attorneys for
Respondent, Joseph V. Medina.
SILVERSTEIN, Judge.*
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 which follow 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 Medina was discharged because of
absenteeism and disqualified him from benefits for a period of
twelve weeks, pursuant to § 8-73-108(5)(x), C.R.S. 1973 (1980 Cum.
Supp.) which provide 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. 12, 116 N.W. 957 (1908); see Hagman v.
Equitable Life Assur. Soc., 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.
* Retired Court of Appeals Judge sitting by
assignment of the Chief Justice under provisions of the Colo.
Const., Art. VI, Sec. 5(3), and § 24-51-607(5), C.R.S. 1973 (1980
Cum. Supp.).
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