Opinion
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado (Ex-officio Unemployment Compensation Commission of Colorado).
Nicholas J. Bourg, Colorado Springs, for petitioner.
No appearance for respondent Tolley Insurance Agency, Inc.
RULAND, Judge.
John R. Hughes (claimant) seeks this review of an order of the Industrial Commission denying his claim for unemployment compensation benefits. We affirm the order.
Claimant was employed by the Tolley Insurance Agency, Inc., on July 1, 1973, and discharged on February 7, 1974. Following a denial of his claim for benefits by the Division of Employment, claimant appealed, and an evidentiary hearing was held before a referee. Thereafter the referee entered findings of fact and determined that claimant was not entitled to benefits by reason of s 8--73--108(6)(j), C.R.S.1973 (1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(x)), which bars a claim for benefits if an employee is discharged because his job performance is impaired through consumption of alcohol off the job. Appeal was taken to the Industrial Commission which affirmed the findings and decision of the referee.
In this review, claimant contends that the only evidence supporting the Commission's findings is hearsay, and that, therefore, there is no substantial evidence to support the Commission's finding and conclusion that off-the-job use of intoxicating beverages interfered with claimant's job performance. We disagree.
While the Commission did consider some hearsay evidence which is not improper in this type of proceeding, the record reflects direct testimony by a fellow employee who testified that claimant appeared at the employee's residence at approximately 3:30 a.m. on the date of his discharge and engaged the employee's wife in a very loud conversation. Based upon claimant's manner of speech and demeanor, the employee testified that claimant was, in his opinion, intoxicated at that time. This employee further established that at approximately 8 a.m. that morning when claimant was due to appear for work, he called in sick. On the basis of this evidence, the referee could properly infer that claimant's sickness and thus his failure to report for work at the scheduled time resulted from consumption of alcohol. Since the referee's finding is supported by substantial evidence, we may not overturn it on review. Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648.
We have considered claimant's other allegations of error and find them to be without merit.
Order affirmed.
COYTE and SMITH, JJ., concur.