Opinion
No. 75-370
Decided November 6, 1975.
Some eight months after unemployment compensation benefits were awarded to claimant, employer requested hearing on grounds that it had not received notice of claim. Upon basis of finding that notice had been duly mailed to employer, Industrial Commission denied employer's request, and employer sought review.
Order Set Aside
1. UNEMPLOYMENT COMPENSATION — Award — Challenge by Employer — Right to Hearing — Lack of Notice — Presumptions — Rebuttal — Weight of Evidence. In unemployment compensation proceeding where employer sought hearing on grounds that it had received no notice of employee's claim, the deficiencies in notice of claim form and absence of evidence of an office custom or practice which would give rise to a presumption of mailing, rendered the notice form insufficient to support Commission's finding, and since employer's evidence was sufficient to rebut statutory presumption that officials faithfully perform their duties, the matter should have been decided on the evidence presented, in which case the employer would have been found not to have received notice of the claim and therefore improperly denied its right to a hearing on the merits.
Review of Order from the Industrial Commission of the State of Colorado
J. D. MacFarlane, Attorney General, Edward G. Donovan, Solicitor General, Jean E. Dubofsky, Deputy Attorney General, John Kezer, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for appellees.
Clayton D. Tipping, for employer-appellant.
Division II.
Squirrell's Answering Service (employer) seeks review of an order from the Industrial Commission affirming a decision of a referee of the Division of Employment that the employer had been given notice of a claim of unemployment benefits by Peggy Allred (claimant). We set aside the order.
In 1972 the claimant, after leaving her employment with the employer, filed a claim for unemployment benefits with the Division of Employment. When the employer failed to object to the claim, benefits were paid to the claimant. Eight months later the employer contacted the Division of Employment, indicated that it had just discovered that benefits were being paid to claimant, and stated that it desired to contest such benefits. A hearing was held before a referee on the issue of whether notice of the claim was mailed to the employer. The referee held that notice was mailed to the employer, basing his decision on the presence in the Division's file of the Notice to Employer of Determination of Benefits Rights (Form B-290) which, when mailed to an employer constitutes notice of a claim. Section 8-74-102(2), C.R.S. 1973. The Commission affirmed the ruling and this petition for review was filed.
The sole issue for review is whether there is evidence in the record to support the Commission's finding that notice was mailed. The only evidence relied on by the referee is the Form B-290 contained in the file. The record is devoid of any other evidence to support the finding that notice was mailed. The Form contains a space in which a date is entered, and a provision that in order for a protest to be valid the Form must be returned to the Division within seven days of the entered date. There is no evidence on the Form itself that it was mailed on the entered date, nor any evidence in the record of an office custom or practice which would give rise to a presumption of mailing. See National Motors, Inc. v. Newman, 29 Colo. App. 380, 484 P.2d 125. Hence, the Form is of no significance and is insufficient to support the Commission's finding.
In contrast, there was evidence by the employer that the notice was not received, and that other Division notices and statements concerning this claimant's file had not been mailed when statutorily required. Even though there is a presumption that officials faithfully perform their statutory duties, Town of Frisco v. Brower, 171 Colo. 441, 467 P.2d 801, the employer's evidence is sufficient to rebut that presumption. Where evidence is introduced in rebuttal of a presumption, then the case must be decided on the evidence presented. 9 J. Wigmore, Evidence § 2491 (3rd Ed.). See Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770.
[1] Under these circumstances, there is neither evidence nor presumption that would support the finding that the notice was mailed. Accordingly, since the only evidence in the record indicates that the employer did not receive notice of the claim, we hold that the employer was not given notice and has been improperly denied its right to a hearing and determination on the merits of the claim.
The order is set aside and the cause remanded for a hearing on the merits of the claim and a reconsideration by the Commission of its order which allowed the employee's claim.
JUDGE PIERCE and JUDGE KELLY concur.