City & County of Denver v. Industrial Commission

TURSI, Judge. The City and County of Denver (employer) seeks review of a final order of the Industrial Commission awarding Pamela Ortega (claimant) full unemployment compensation benefits. We affirm. The claimant was terminated from her job as a recreation leader when she came to work intoxicated. The evidence established that she could not satisfactorily perform her job duties after drinking. The evidence further established that she had received warnings after similar incidents that another occurrence would result in her dismissal. Even then, the claimant continued regularly to drink alcoholic beverages and started but failed to complete two Antabuse programs. On the day before the incident leading to her discharge, claimant ingested Antabuse and alcohol even though she had [91] been informed that this could have life-threatening consequences. In support of its burden to establish that claimant was disqualified for benefits, City of Arvada v. Industrial Commission, 701 P.2d 623 (Colo.App.1985), employer called claimant’s immediate supervisor, who testified that claimant’s drinking was beyond her control. A medical doctor called by employer testified that claimant suffered from the illness of alcoholism and depression. Claimant then testified she was an alcoholic. She also called a doctor in psychology with a specialty in substance abuse. He testified that claimant was an alcoholic of long standing. He testified further that alcoholism is a mental disease or defect. From this testimony, the Commission found that the claimant was suffering from the disease of alcoholism and, as a result, was unable to refrain from ingesting alcohol. Furthermore, the Commission found that this disease resulted in her being unable to perform her job duties satisfactorily. The Commission concluded the claimant was not at fault for her termination and awarded her full unemployment compensation benefits on the basis that her termination fell within the ambit of § 8-73-108(4)(j), C.R.S. (1985 Cum.Supp.) (mental or physical inability to perform the work). The employer first contends that there was insufficient evidence to support the findings of the Commission that the claimant was entitled to full unemployment benefits. However, both the Commission and this court are bound by the record presented for review. Because legitimate inferences drawn from the evidence in the record can reasonably support the findings and conclusions of the Commission, we do not agree with the employer. An individual is entitled to a full award of benefits if unemployed through no fault of his own. Section 8-73-108(l)(a), C.R.S. (1985 Cum.Supp.); see Zelingers v. Industrial Commission, 679 P.2d 608 (Colo.App.1984). Pursuant to § 8-73-108(4)(j), the Commission may award full benefits if it determines that a claimant was terminated for being physically or mentally unable to perform her work. See Mountain States Telephone & Telegraph Co. v. Industrial Commission, 637 P.2d 401 (Colo.App.1981); Tague v. Coors Porcelain Corp., 30 Colo.App. 158, 490 P.2d 96 (1971). Here, there was evidence to support the Commission’s findings that, as a result of claimant’s alcoholism, she was unable to perform her job duties satisfactorily. Furthermore, there was evidence to support the Commission’s factual finding that the claimant lacked the volition to stop drinking and to conclude therefrom that she was not at fault for her termination. Since there was substantial evidence to support these determinations, they will not be disturbed on review. See Sims v. Industrial Commission, 627 P.2d 1107 (Colo.1981); see also City of Arvada v. Industrial Commission, supra. The employer also contends the Commission erred in not awarding reduced benefits under § 8-73-108(5)(e)(VIII), C.R.S. (1985 Cum.Supp.) (off-the-job use of unprescribed intoxicating beverages which interferes with job performance). When two sections of the Colorado Employment Security Act are applicable, the Commission has wide latitude in determining which section it will apply. See Mohawk Data Sciences Corp. v. Industrial Commission, 660 P.2d 922 (Colo.App. 1983). Here, there was evidence to support the application of § 8-73-108(5)(e)(VIII). However, there was also evidence to support the application of § 8-73-108(4)(j). Since each subparagraph of § 8-73-108(4) is an independent criterion for determining benefits, and the Commission’s decision to apply § 8-73-108(4)(j) was supported by substantial evidence, that decision will not be disturbed on review. See Sims v. Industrial Commission, supra. Order affirmed. [92] BERMAN, J., concurs. PIERCE, J., dissents.