Anderson v. Industrial Com'n

• Citation: 29 Colo.App. 263,482 P.2d 403
• Decision Date: 02 March 1971
• Docket Number: No. 70--448,70--448
• Parties: Raymond William ANDERSON, Petitioner, v. INDUSTRIAL COMMISSION of Colorado and Ace Disposal Service Co., Inc., Respondents. . I
• Court: Court of Appeals of Colorado

Page 403

482 P.2d 403

29 Colo.App. 263

Raymond William ANDERSON, Petitioner, v. INDUSTRIAL COMMISSION of Colorado and Ace Disposal Service

Co., Inc., Respondents.

No. 70--448.

Colorado Court of Appeals, Div. I.

March 2, 1971.

William M. Cohen and Lawrence W. Treece, Legal Aid and Defender Program, Boulder, for petitioner.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for Industrial Commission of Colorado.

ENOCH, Judge.

This is an unemployment compensation case. Petitioner was employed from July 21, 1969, to October 17, 1969, by the Ace Disposal Service Co. as a trash collector on one of its trucks. Petitioner quit this job on Friday, October 17, 1969, to accept an offer of a construction job to begin on the following Monday. Upon reporting for work at the construction job on Monday, he was told that certain materials necessary for the job had not arrived and that the project was temporarily postponed. The materials arrived on November 17th and Petitioner was employed from that date until the project was completed on or about January 20, 1970. Petitioner submitted a claim for unemployment compensation on January 29, 1970. As a part of his application, Petitioner filled out a 'Department of Employment, Better Job Questionnaire' in which he alleged, Inter alia, that he was a construction worker and that he left the trash collector job to accept a better paying job in the construction business. He further stated that his first day on the new construction job was November 17, 1969, that his last day was January 15, 1970 and that he was hired for a specific period of time, namely two months.

Petitioner's claim for unemployment compensation was denied by a deputy of the Division of Employment, based on Ace Disposal's protest that Petitioner was fired for drinking on the job. Petitioner emphatically denied that he was fired and reiterated his position that he quit the job to take the new construction job. Thereafter, a hearing was held on April 27, 1970, before a referee from the Division of Employment who affirmed the deputy's denial of compensation. However, the referee based his affirmance on 1965 Perm.Supp., C.R.S. 1963, 82--4--8(6)(b)(vii), which provides that benefits may be denied an employee who quits to accept other employment which cannot be construed to be a better job. Petitioner duly appealed the referee's decision to the Industrial Commission, which in turn affirmed it. Petitioner now seeks review of the Industrial Commission's order affirming the denial of benefits.

The principal issue on appeal is the allegation that Petitioner was not given notice of the issues to be heard at the hearing before the referee. The notice sent to Petitioner in advance of the hearing stated: 'You are advised that the referee is not bound by the findings or decision of the deputy and that the hearing is in the nature of a trial On all relevant issues.' (Emphasis added) Petitioner asserts that he should have been advised that the 'better job' conditions of 1969 Perm. Supp., C.R.S. 1963, 82--4--8(4)(g) would be an issue. He claims that, by not having been so advised, he was prepared to address himself only to the erroneous basis for denying the claim relied on by the deputy, I.e., drinking on the job.

We do not agree with this assertion.

'An appeal in an unemployment compensation case removes the claim in its entirety, and the hearing is, in effect, a trial de novo. The administrative appellate tribunal may consider all matters...