Gerald S. Yanish, Petitioner,
v.
Industrial Commission of
Colorado (Ex-officio Unemployment
Compensation Commission of Colorado), and PCA Corporation of
Kansas, Photo Corp. of
America, Respondents.
No. 76--509.
38 Colo.App. 492, 558
P.2d 1007
Colorado
Court of Appeals,
Div. I.
Dec. 30, 1976.
Robert L. Harris, Denver, for petitioner.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty.
Gen., Edward G. Donovan, John Kezer, Asst. Attys. Gen., Denver, for
respondent Industrial Commission of Colo.
COYTE, Judge.
Claimant seeks review of an order of the Industrial Commission
denying unemployment compensation benefits. We set aside the order.
Claimant was twice separated from his employment, first in
February 1975, and, after rehiring by the same employer, a second
time in August 1975. The referee found that claimant was terminated
initially due to his incompatibility with supervisors and fellow
employees, and consequently, as to that termination, was entitled to
fifty percent of a full award of benefits under
§ 8--73--108(5)(b), C.R.S.1973.
With respect to the second period of employment, the referee,
after a hearing, concluded claimant was responsible for the later
termination. Claimant was therefore disqualified from the receipt of
benefits for a period of thirteen weeks in accordance with the
provisions of § 8--73--108(7),
C.R.S.1973.
The Commission adopted the findings of fact and the decision of
the referee. Claimant filed a timely petition for review, and, after
review, the Commission affirmed its previous decision.
I.
Claimant raises various assignments of error relative to alleged
procedural defects in the Commission's proceeding, to the
evidentiary value of testimony by the employer, and to the effect of
the rehiring. The procedural error is dispositive.
Section 8--74--106(1), C.R.S.1973, authorizes the Commission to
prescribe regulations for the conduct of hearings and appeals in
unemployment compensation cases. The statute further provides that
the presentation of claims and necessary documentation, including
reports required from the employer 'shall be in accordance with
(said) regulations . . . .'
Pursuant to its statutory authority, the Commission promulgated
rules, in effect at the time of the claim here, governing the
submission of specified documents. Under those regulations a protest
by the employer of benefit payments was required to be made within
seven days of the date upon which the Division of Employment mailed
its notification form to the employer, and the protest form bore a
printed statement to this effect. If an employer failed to comply
with the prescribed time limitations, the employer would 'be deemed
not to be an interested party' as defined in §
8--70--103(17), C.R.S.1973, and barred from protesting payment of
benefits in the particular instance. Division of Employment
Regulation No. 4 (Nov.1974).
It is undisputed that claimant's employer, although it received
the appropriate notification, did not protest the claim within the
pertinent time limitations. The employer's report contained in the
record is dated some eight days later than the time stipulated for
its return on the face of the form.
The Commission concedes that the employer's protest was not
submitted in timely fashion. However, it maintains that inasmuch as
the issue was not raised in the proceedings until claimant filed a
petition for review before the Commission, claimant has waived the
opportunity to object in this review to the procedures followed. The
argument is unconvincing.
Powers entrusted to the Commission are specifically delineated in
the statute. The Commission has broad authority to affirm, modify,
or set aside the decision of a referee on its own motion. It may
also direct the taking of additional evidence if necessary. See
§ 8--74--105, C.R.S.1973. Accordingly,
the Commission has ultimate responsibility with respect to matters
of fact and law supporting its decision. McGinn v. Industrial
Commission, 31 Colo.App. 6, 496 P.2d 1080 (1972).
On this basis, the judicial authority cited by the Commission in
support of its waiver argument is distinguishable. This is not a
situation where the matter is raised for the first time before a
body constituted exclusively for purposes of review. See, e.g.,
Robert S. Abbott Publishing Co. v. Annunzio, 414 Ill. 559, 112
N.E.2d 101 (1953); Cf. Jacobs v. Office of Unemployment
Compensation & Placement, 27 Wash.2d 641, 179 P.2d 707 (1947).
Nor is it a case in which an employer is improperly deprived of his
opportunity to protest by the Division's failure to notify him of
the claim. Allred v. Squirrell, Colo.App., 543 P.2d 110
(1975). Here the Commission was not only sufficiently appraised of
claimant's objection to the employer's protest but was required to
correct the alleged defect despite the fact that it was not raised
before the referee. Section 8--74--105, C.R.S.1973; McGinn v.
Industrial Commission, supra. Thus, claimant did not waive his
right to object to the procedural defect.
As the employer's protest did not conform to the procedural
requirements established by the Commission pursuant to s
8--74--106(1), C.R.S.1973, the employer was precluded from
contesting the payment of benefits. Vieweg v. B. F. Goodrich Co.,
170 Colo. 71, 459 P.2d 759 (1969); Miller v. Industrial
Commission, 28 Colo.App. 462, 474 P.2d 177 (1970). The evidence
presented by the employer must be disregarded, and therefore no
evidence exists to support a denial of benefits. Accordingly, the
Commission's decision cannot be upheld on review. Beatty v.
Automatic Catering, Inc., 165 Colo. 219, 438 P.2d 234 (1968). No
disputed factual issue arose here subsequent to expiration of the
time for the filing of a protest by the employer, and thus further
proceedings on the part of the Commission are unnecessary.
Industrial Commission v. Emerson Western Co., 149 Colo. 529, 369
P.2d 791 (1962).
The order is set aside and the cause is remanded with directions
to award claimant unemployment benefits determined by his initial
claim.
Enoch and Sternberg, JJ., concur.
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