Opinion
Nov. 28, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Vernon P. Playton, Denver, for respondent Patricia A. Danos.
Peter Razatos, William R. Hebeler, Englewood, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., for respondent Industrial Commission of the State of Colorado.
PIERCE, Judge.
The claimant was employed by Polo Lounge as a barmaid from September 1970 until July 1971, when she terminated her employment following a dispute with the owner of the lounge. Thereafter, she filed for unemployment compensation, contending that her employer treated her unfairly in several respects in violation of certain Colorado labor laws. The employer countered that claimant's unemployment was due entirely to the single dispute that occurred immediately prior to her leaving the job.
The claim was first assigned to a deputy and appealed to a referee, both of whom concluded that the claimant resigned because of dissatisfaction with working conditions and thus was entitled to a no award under 1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(i). The referee made findings, citing specific incidences, that the claimant's unemployment was attributable to reasons personal to her. No findings were made with regard to the employer's conduct.
Thereafter, claimant appealed to the Industrial Commission, which reversed the determination of the referee. The Commission found that, 'The facts presented to the referee to clearly establish that the claimant and the employer were mutually responsible for the separation. . . .,' and granted an optional award pursuant to 1965 Perm.Supp., C.R.S.1963, 82--4--8(7). The Commission presumably adopted the findings of the referee as to claimant's contribution to the cause of the separation, but made no specific findings as to any facts upon which they relied to determine that the employer had contributed to the causes for the separation.
We have previously held that in order for this court to be able to review an order of the Industrial Commission, the Commission must enter findings as to the evidentiary and ultimate facts. Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424. Although that case referred to the wording of 1969 Perm.Supp., C.R.S.1963, 81--14--6(2), the principle announced therein is applicable to Commission review of referee decisions regarding unemployment compensation claims under C.R.S. 1963, 82--5--6. If we were to rule otherwise, the burden of finding facts and the attendant responsibility of weighing evidence and the credibility of witnesses would be removed from the Commission to this court. This is prohibited by 1969 Perm.Supp., C.R.S.1963, 82--5--11.
By so ruling we do not accept appellee's contention that the Commission cannot overrule the referee, but rather reaffirm the position adopted in McGinn v. Industrial Commission, Colo.App., 496 P.2d 1080. That is, the Commission may affirm, modify, or set aside a referee's decision; but whatever it chooses to do, it must support that decision with adequate findings of fact. The absence of such findings in the Commission's final decision requires a remand of this case.
The order of the Commission is set aside and the cause remanded to the Commission with directions to make findings of fact and to enter its award thereon.
COYTE and DWYER, JJ., concur.