The initial burden of proof is always on a claimant to establish a prima facie case of eligibility for unemployment compensation benefits. Duenas-Rodriguez v. Industrial Comm'n, 199 Colo. 95, 97, 606 P.2d 437, 438 (1980); Arvada v. Industrial Comm'n, 701 P.2d 623, 624 (Colo.App. 1985). If the claimant presents a prima facie case for eligibility and the employer contests "an otherwise eligible claimant's right to benefits on the grounds that the claimant was discharged for misconduct," the employer then has the burden to make a prima facie showing to the contrary.
Id. at 1164. Procedurally, the claimant has the initial burden of proof to establish a prima facie case of eligibility for benefits. City County of Denver v. Industrial Comm'n, 756 P.2d 373, 380 (1988); Duenas-Rodriguez v. Industrial Comm'n, 199 Colo. 95, 97, 606 P.2d 437, 438 (1980); Bartholomay v. Industrial Comm'n, 642 P.2d 50 (Colo.Ct.App. 1982). If the initial burden of the claimant is met, the burden shifts to the employer to establish the statutory disqualification for benefits. City County of Denver, 756 P.2d at 380; City of Arvada v. Industrial Comm'n, 701 P.2d 623, 624 (Colo.Ct.App. 1985). A decision of the panel may not be set aside where there are findings of fact supported by substantial evidence.
Our interpretation is consistent with decisions in other jurisdictions interpreting similar statutory provisions. See, e.g., Magma Copper Co. v. Arizona Dep't of Economic Sec., 128 Ariz. 346 (Ct. App. 1981); Arvada v. Industrial Comm'n of Colo., 701 P.2d 623 (Colo.App. 1985); Dalton Brick Tile Co. v. Huiet, 102 Ga. App. 221 (1960); Roll v. Middleton, 105 Idaho 22 (1983); Potts v. Review Bd. of Indiana Employment Sec. Div., 475 N.E.2d 708 (Ind. App. 1985); Cosper v. Iowa Dep't of Job Serv., 321 N.W.2d 6 (Iowa 1982); Charbonnet v. Gerace, 457 So.2d 676 (La. 1984); Dubois v. Louisiana Dep't of Labor, Office of Employment Sec., 427 So.2d 645 (La. App. 1983); Wallace W. Carlson Co. v. Hasler, 351 N.W.2d 688 (Minn. App. 1984); Adelsman v. Northwest Airlines, Inc., 267 Minn. 116, 123 (1963); Unemployment Comp. Bd. of Review v. Bacon, 25 Pa. Commw. 583, 586 (1976); In re Therrien, 132 Vt. 535 (1974); Kansas City Star Co. v. Department of Indus., Labor Human Relations, 60 Wis.2d 591, 602 (1973). Our holding expressly limits the broad statement in Smith v. Director of the Div. of Employment Sec., 384 Mass. 758, 761 (1981), that the claimant "bears the burden of persuasion on issues affecting his eligibility for unemployment benefits."
See Division of Employment Training v. Hewlett, 777 P.2d 704 (Colo. 1989); Yellow Front Stores, Inc. v. Industrial Commission, 694 P.2d 882 (Colo.App. 1985); Arvada v. Industrial Commission, 701 P.2d 623 (Colo.App. 1985); Denver Symphony Ass'n v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974); cf. Lucero v. Industrial Claim Appeals Office, 812 P.2d 1191 (Colo.App. 1991). The procedures for a claimant to establish a prima facie case at a hearing vary depending on whether the claimant was awarded or disqualified from the receipt of benefits by the deputy.
1989); City County of Denver v. Industrial Commission, 756 P.2d 373 (Colo. 1988); City of Arvada v. Industrial Commission, 701 P.2d 623 (Colo.App. 1985). The opinion in Centennial Drywall Co. v. Industrial Commission, 724 P.2d 685 (Colo.App. 1986), which was decided before both the Hewlett and City County of Denver opinions were issued, is not contrary to this rule.
The reason for a claimant's separation from employment is a question of fact, and the Commission's determination may not be altered on review if it is supported by the evidence. City of Arvada v. Industrial Commission, 701 P.2d 623 (Colo.App. 1985). Although contradictory evidence was presented, the findings of fact, including Centennial's non-payment of benefits, the cessation of any contacts between the union and Centennial, and Centennial's bad faith bargaining to force a non-union shop, are supported by the evidence.
On the day before the incident leading to her discharge, claimant ingested Antabuse and alcohol even though she had 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.
Therefore, if as here, a claimant presents a prima facie case that he incurred the injury at issue while on "travel status," then the burden shifts to the employer to prove that the claim should be disallowed. See Silver Engineering Works, Inc., v. Simmons, supra; Deterts v. Times Publishing Co., 38 Colo. App. 48, 552 P.2d 1033 (1976); cf. City of Arvada v. Industrial Commission, 701 P.2d 623 (Colo.App. 1985) (initial burden of showing eligibility for unemployment benefits met by filing of claim stating claimant was discharged, and burden then shifted to employer to show claimant disqualified). Moreover, in reviewing the evidence, the referee cannot grant or deny an award based on speculation or conjecture, or based on evidence not in the record.
Here, the claimant met her initial burden to establish eligibility when she filed a claim that reflected a discharge from covered employment, and the burden was then on the employer to prove its contentions that the claimant was disqualified from receiving benefits. City of Arvada v. Industrial Commission, 701 P.2d 623, (Colo.App. 1985). Although it might have been to claimant's benefit to be present so as to present additional evidence, to cross-examine employer's witnesses, and to present her own arguments, there is no requirement that she do so.
See City and County of Denver v. Industrial Comm'n, 756 P.2d 373,379-80 (Colo. 1988) (quoting Arvada v. Industrial Comm'n, 701 P.2d 623, 624-25 (Colo. App. 1985). Contrary to the respondents' assertions, we conclude that the ALJ properly considered whether, based upon the totality of the circumstances, the claimant was at fault for his separation from this employment.